일본 메이지민법에서의 임대차제도와 임차권 무단양도⋅임차물 무단전대에 관한 입법태도에 관한 연구

With Regard to the Formation of Lease System in the Japanese Meiji Civil Code and to Legislative Thinking about Transfer of Lease without Permission and Sub-lease of Leased Object without Permission

This study is discussing about formation and thinking of legislative history in the regulations(from Article 601 to Article 621) pertinent to lease in civil code of Japan in the Meiji period, which had considerable influence upon the legislation of the lease regulations below Article 618 in our civil law. Japan s current civil law is being based on the Meiji Civil Code(明治民法) that was enforced in 1898(MEIJI YEAR 31). There was old civil code that was enacted in 1890(MEIJI YEAR 23) prior to it. The current civil code was enacted with a method of modifying this old civil law. Its system and the contents in individual provision are being made in the form of accepting(modification included) or excluding old civil code(旣成民法). In this sense, even a research of Japan s old civil code has important significance in a study on a system of Japanese civil code. Also, a reason of legislating the Meiji Civil Code, which revised( modified ) old civil law, becomes the important foundation even in correctly grasping our law henceforth. The right to lease of the real estate is recognized as one property right, namely, product. Moreover, some spheres of having been developed even to important component in lessee s economic life are needed the security of free recoverability(ultimately re-investment possibility) in capital in line with this, too. Accordingly, there is no need of being bound strictly to legislative objective of lawmaker who enacted our civil law Article 629(further old civil law Article 612). It is inevitable to re-analyze Article 629 in order to meet the significance that the leased object has as for the person directly involved in the lease, a role and function of taking charge in economic life. This will result in differentiation of applying Article 629 according to the leased object. Such restriction shall not rely upon lessor s pampered intention even if it cannot help giving restriction to the transfer of right to lease in other certain cases. The limit of restriction will need to be set in line with existential objective & function in lease, and social role.