일본 메이지민법

• 영문명: Comments on the Motives Codifying the Meiji Civil Code-Part 2. Property Law: General Principles and Mortgage[General Part]-
• 발행기관: 한국민사법학회
• 저자명: 이준형(Joon-Hyong LEE)
• 간행물 정보: 『민사법학』제60호, 355~397쪽, 전체 43쪽
• 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 (Yuhikaku, 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. From the review, the author concludes, that regarding the general principles of property(which provide numerus clausus of jus ad rem, mechanism of right transfer as well as opposability, and extinction via confusion), surprisingly various viewpoints were suggested, all of which, however, aimed at the introduction and strengthening of ownership in the modern sense; consensualism was preferred to formalism by reason that the former was above all thought to be more suitable to the Japanese social realities; and the Japanese drafters maintained general principles of property law while the german drafters decided to abolish them, resulting in that the Japanese code and the Saxon counterpart resemble; that regarding the general part of mortgage(which covers its definition, effects and effective range), though the influence of the French law(or the Romanist legal family) has survived in the textual dimension(for example, substitutes as object of mortgage), some amendments(for example, abolishment of so-called immeuble par destination) could be traced to the German or English law; the reason why a great number of amendments were necessary could be justified in the fact that there had been a lot of articles of administrative and procedural character in the old version of codification; and the creditor-favored trend could be explained not only by the French influence but also by the socioeconomic demand of capital accumulation in the late 19th century.

목차

Ⅰ. 일러두기

Ⅱ. 물권 총칙(제2편 제1항)

Ⅲ. 저당권(제2편 제10장)

Ⅳ. 맺음말

참고문헌

키워드

메이지민법 民法修正案(前三編)理由書 舊민법 물권편 물권법정주의 물권변동 저당권의 효력과 그 범위 물상대위 the Meiji Civil Code and its reform motives (former three parts) the old Japanese Civil Code draft(by G. Boissonade) part of property law numerus clausus of jus ad rem mechanism of right transfer effects and effective range of mortgage substitutes as object of mortgage