일본 메이지민법(물권편:地上權/永小作權)의 입법이유

Comments on the Motives Codifying the Meiji Civil Code(Part 2. Property Law: Superficies/Emphyteusis)

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 (Yūhikaku, 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. In the Japanese former Civil Code draft superficies was prescribed as ‘some sort of ownership’, however the Meiji Civil Code provides that it is the right to use the land of others in order to own structures or trees or bamboo on that land. On the other hand the Japanese former Civil Code draft labeled long-term lease as “a perpetual leasehold”, but the Meiji Civil Code eliminated such a distinction and called a perpetual leasehold as ‘Emphyteusis’, that is the right to engage in cultivation or livestock farming on the land of others by paying rent. So now there are three ways of borrowing the land of others, i.e. superficies, emphyteusis and leasehold. Among them leasehold is credit while superficies and emphyteusis are real property. The crucial difference between leasehold and superficies is that leasehold is characterized as credit to impose repair obligations to the landlord. To distinguish between the superficies and the emphyteusis is in order to separate renting of housing site or woods and fields from farmland.