일본 메이지민법(물권편 : 선취특권)의 입법이유

Comments on the Motives Codifying the Meiji Civil Code(Part 2. Property Law: Preferential Right)

This article contains the full translation of reform motives of the Meiji Civil Code (Part of Property Law, Chapter Preferential Rights or Statutory Liens), which are based on the texts edited by IRONAKA Toshio, Minpō Shuseian (zensampen) no Riyusho(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. The preferential rights(chapter 8) have been accepted into the Meiji civil Code from the French civil Code, through the former civil Code, drafted by G. Boissonade. To begin with, they are composed into 4 sections : General Provisions (Section 1)(articles 303 to 305), Kinds of preferential rights (Section 2) (articles 306 to 328), which have also 3 subsections, General preferential rights, Preferential right over movables and Preferential rights for immovable properties, and Order of priority of preferential right(Section 3) (articles 329 to 332), Effect of preferential rights(Section 4)(articles 333 to 341). This system and its contents are so similar to the two preceding Codes, which is totally different with the Geman and Swiss one. A holder of a preferential rights shall have the rights to have his/her own claim satisfied prior to other obligees out of the assets of the relevant obligor in accordance with the provisions of laws including this Act(article 303). In addition, a person who has a claim that arose from the sale of movables, shall have a preferential rights over certain movables of the obligor(article 311, paragraph 5). It is also admitted that a person who has a claim that arose from the construction work for immovable property, shall have a preferential rights over certain immovable property of the obligor(article 325, paragraph 2). Our Korean civil Code abolished all this preferential rights, according to the position of the Swiss and the Germany. In order to solve these problems, we have the pledge for accessories, fruits, etc. on leased land, recognized by law(article 648), the mortgage on building on leased land, recognized by law(article 649) and the pledge for accessories attached to leased building, etc., recognized by law(article 650). Moreover, the contractor s right to demand creation of mortgage on immovable which is object of contract(article 666), is also introduced. According to this, the contractor for work on an immovable may demand of the person who ordered the work to create mortgage on the immovable in order to secure the contractor s claim in relation to his remuneration mentioned in article 665. All these, however, have not been actively used. The right of retention(article 320, paragraph 1) is absolutely used in practice. They are all subject-matter of reform of the Korean civil Code. This study indicates a number of further comparative research are needed. We are continually asked to analyse if there is no need to examine all the claims, which had the preferential rights, as surveyed in this whole study.