일본 메이지민법(물권편: 소유권의 한계)의 입법이유

Comments on the Motives Codifying the Meiji Civil Code- Part 2. Property Law: Ownership/neighbor relationship -

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. Especially, this article examines legislative concerns about restrictions on ownership. The Meiji Civil Code establishes provisons of neighbor relationship from article 209 through 238. These provisons has been greatly influenced by the German and Swiss Civil Code. While the old Japanese Civil Code draft(by G. Boissonade) treated the neighbor relationship as a type of legal easement in the section of the easement like France, the Meiji Civil Code provides it in the section of the ownership like German. Because the drafters of the Meiji Civil Code thought that the boundary of land ownership could be marked by defining the neighbor relationship. However, they did not consider pollution unlike the German Civil Code. The neighbor relationship part of the Korean Civil Code seems to be similar to the Meiji Civil Code except for the section of pollution. Those provisons concerning neighbor relationship in the Meiji Civil Code are derived from Japanese customs between the late 1800s and the early 1900s. In this sense, they are inconsistent with modernized society in these days. Nevertheless, their fundamental idea still deserves closer scrutinies in maintaining today’s community life.