특수지역권의 재고

Reconsideration of special servitude

According to article 302 of the Korean Civil Law , it's called as 'special servitude' for local resident group to get profit from wild edible green, sap, pine mushroom, abalone, conch, seaweed, manila clam in other's land & sea as body corporate without capacity of enjoyment of rights. legal property of special servitude is prescribed as near as servitude in article 302 of the Korean Civil Law. Originally servitude is a sort of real right include usufruct using other's land for specific purpose that is set in action of establishment between parties. It is also about relationship of utilization between dominant estate and servient estate. It can't be called as servitude for person in specific area to get profit from other's land. Even though conflict of theories, intrinsic property of local resident group is body corporate without capacity of enjoyment of rights. If body corporate without capacity of enjoyment of rights own right, then ownership form is called as quasi-Gesamteigentum32). Therefore term of 'special servitude' should be substituted for beneficiary right of land with property of a sort of quasi-Gesamteigentum Establishment by custom is prerequisite for validity of special servitude, according to article 302 of the Korean Civil Law & most of theories. It is common case that special servitude is established by contract(agreement about preservation of forest) rather than custom in publicly owned or government owned forest land. Most of theories insist that establishment of special servitude with custom is not needed a registration but establishment of special servitude with contract is needed a registration to claim to the third party. I think that establishment of special servitude with contract is not needed a registration to claim to the third party. Legal property of special servitude is limited real right as joint beneficiary right of local resident group. Ownership form of special servitude is quasi-Gesamteigentum and special servitude has property of a sort of personal servitude rather than servitude. Intrinsic validity of special servitude is for local resident group to get profit from specific land through custom & contract. If special servitude is established by agreement about preservation of forest, local resident group has a duty to preserve forest and to give some amount of money to owner of forest in some cases. Also in such case, special servitude is being given in 5 years and rent, disposition, transfer and inheritance is not allowed. It is mistake to perceive special servitude as outdated right that making devastated forest and diminished profit. According to research, local resident group, government and local self-governing body are trying to improve profit of farming & fishing community. Also local resident group has a role to preserve forest well. In standpoint of local resident group, special servitude is not a extinctive right but a strong recommended right in consideration of harvesting on the premise of effectiveness of income and redistributing to senior people lack of labor force in farming & fishing community. Article 302 of the Korean Civil Law should be amended considering the situation described above. It is one example of amendment like below, "If there is a right of local resident group as aggregate, Code of Gesamteigentum should be applied except application of custom and regulation".