일본 메이지민법(물권편:地上權/永小作權)의 입법이유

• 영문명: Comments on the Motives Codifying the Meiji Civil Code(Part 2. Property Law: Superficies/Emphyteusis)
• 발행기관: 한국민사법학회
• 저자명: 김병선(Kim, Byung Sun)
• 간행물 정보: 『민사법학』제60호, 447~496쪽, 전체 50쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2012.10.31

영문 초록

This article contains the full translation of reform motives of the Meiji Civil Code(the part of property law), which are based on the texts edited by HIRONAKA Toshio, Minpō Shuseian (zensampen) no Riyūsho (Yūhikaku, 1987), and adds some comments from the viewpoints of the Korean lawyer, whose legislation has been widely influenced by the European legal tradition via the Japanese legal scholarship. In the Japanese former Civil Code draft superficies was prescribed as ‘some sort of ownership’, however the Meiji Civil Code provides that it is the right to use the land of others in order to own structures or trees or bamboo on that land. On the other hand the Japanese former Civil Code draft labeled long-term lease as “a perpetual leasehold”, but the Meiji Civil Code eliminated such a distinction and called a perpetual leasehold as ‘Emphyteusis’, that is the right to engage in cultivation or livestock farming on the land of others by paying rent. So now there are three ways of borrowing the land of others, i.e. superficies, emphyteusis and leasehold. Among them leasehold is credit while superficies and emphyteusis are real property. The crucial difference between leasehold and superficies is that leasehold is characterized as credit to impose repair obligations to the landlord. To distinguish between the superficies and the emphyteusis is in order to separate renting of housing site or woods and fields from farmland.

목차

Ⅰ. 序 論

Ⅱ. 地上權 (제2편 4장)

Ⅲ. 永小作權 (제2편 5장)

Ⅳ. 맺음말

참고문헌

키워드

메이지민법 民法修正案理由書(前三編) 일본 구민법 물권편 地上權 永小作權 賃借權 Meiji Civil Code and its reform motives(former three parts) Japanese former Civil Code draft(by G. Boissonade) part of property law Superficies Emphyteusis Leasehold