일본 메이지민법(물권편:질권)의 입법이유

Comments on the Motives Codifying the Meiji Civil Code(Part.9. Gage)

This article contains the full translation of reform motives of the Meiji Civil Code(the part of gage), which are based on the texts edited by Hironaka Toshio, Minpo syuseian(zennsannpen) no Riyusho(Yuhikaku, 1987), and adds some comments from the viewpoints fo the Korean lawyer, whose legislation has been widely influenced by the European legal tradition via the Japanese legal scholarship. This writing explains about the history of the right of edge and the legal system of the Meiji civil code. It may be fairly said that the history of the right of edge is the history of the real rights granted by way of security itself. In fact, as for each nations, the right of edge had existed from the intial period of the occurrence of the real rights granted by way of security, and it has played an important role in terms of the physical security. Also in Japan, the right of edge as a sort of a physical security has played the central role of real rights granted by way of security in Kamakura period as well as Muromachi period, after originating from China. The Meiji civil code, or the origin of current Japanese civil code, has the legal system of the right of edge that is different from the old civil law. In other words, the old civil law does not set the general provisions regulations like the current civil code, but rather had separately regulated the pledge of moveables and real estate right of pledge, and they did not have set any regulations independently regarding the pledge of rights. However, the Meiji civil code is setting the general provisions regulations that are applied to all rights of edge under the integrated title called the right of edge, and this point is the different point from our civil code. Under the general provisions regulations, each of the pledge of movables, real estate rights of edge, and pledge of rights are regulated. In this writing, it is intended to faithfully analyze and inspect the reason for legislation of individual provisions regarding this onto the original. As for the features of the Meiji civil code, what is regarded to be meaningful comparing them to our codes can be summarized as follows. First is the general regulation provisions that are applied to the rights of pledge, and second is the regulations regarding the real estate right of pledge, and the last is about the establishment of the regulations regarding the pledge of rights. Especially, since the general provisions regulations are mostly composed of the regulations about the pledge of movables of the old civil code, although the regulations about the pledge of movables relatively decreased in Meiji civil code, the content regulates about the effects and methods of execution of the pledge of movables as well as the order of priority among the pledgees. And the real estate right of pledge in Japanese law is the system that is not admitted in our civil code, and the fact that real estate pledgee can use and profit from the real estate, which is the purpose of the right of pledge is quite meaningful in our law too. Lastly, the pledge of rights is the content that is newly established in Meiji civil law, and it can be regarded to be the system that has the highest utilization reason.