公益信託財産におけるCy pres原則について

抄録

"The cy pres doctrine", as generally understood in the United States, is that which permits a gift for a charitable purpose which cannot, for one reason or another, be carried out as directed by the donor, to be applied as nearly as may be to the fulfillment of the underlying charitable intent. A much more important power of the cy pres doctrine is one which is confined to charitable trusts only, namely, the cy pres power. If a direction of the settlor as to method of operation of the charity is originally, or later becomes, highly disadvantageous to the accomplishment of the charitable objectives of the settlor, the court may direct the trustee to ignore the clause in question. A prerequisite to the use of cy pres doctrine is a finding that the settlor had a general charitable intention to aid charity as a whole. And the court has power to change administrative provisions in charitable trusts where the settlor's directions hinder the trustee in accomplishing the trust purpose. The court also has the power under the cy pres doctrine to order the trust funds to be applied to a charitable purpose different from that named by the trustor, where the settlor had a general charitable intention and the accomplishment of the settlor's charitable purpose is impossible, impractical or illegal. This paper contains the following items; I Introduction II The cy pres doctrine on American charitable trust 1 The cy pres doctrine on charitable trust 2 Applicable conditions of the cy pres doctrine i The case of Evans v. Abney ii The case of Howard Savings Institution v. Peep III A problem with regard to the application of the cy pres doctrine in Japanese trust