일본 메이지민법(총칙편 : 기간·시효)의 입법이유 분석

Comments on the Motives Codifying the Meiji Civil Code(General Part: Period·Prescription)

This article contains the full translation of reform motives of the Meiji Civil Code(the general part). They are based on the texts edited by Hironaka Toshio, Minpo syusean (zensanpan) no ryusyo(Yuhikaku, 1987), and they add 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. From the review, the author concludes, the system of the Meiji Civil Code was said to be based on the german civil Code(BGB), which was contraty to the french civil Code(Code civil français). In this paper, we was able to find that it holds true in part : The period was mainly accepted from the german law, but the prescription was from the french law and the old japanese civil Code, especially, in that it was regulated uniformly the acquisitive prescription and the extinctive prescription, under the name of prescription. In contrast, all our korean system on the period and the prescription, by default, came from the german law. In addition, in its text, period was absolutely influenced from the german civil Code. For example, common rules on calculation of period (article 138), commencement of period(articles 139, 140), expiration of period (articles 141, 142) and calculation of period with reference to calendar(article 143). On the contrary, the prescription was from french civil Code, especially in the Section I(General Provisions) : effect of prescription(article 144) (retroactive effect), ground of interruption of prescription(article 147) and suspension of prescription(articles 158-161) etc. In addition, the section II (Acquisitive Prescription) is strongly influenced from the french civil Code and the old civil Code. The Japanese Civil Code, after about 110 years of its enactment in 1896, which its most part remains unchanged, faces an imminent need for fundamental reform. While the language was modernized in 2004, the contents of each provision remain basically intact. So the legislator s intent is still valid in the present civil Code. This situation is same to our civil Code. Today, the social and economic premise of the civil society upon which the civil Code was built has undergone radicalal changes unexpectable on its enactment. Moreover, an increasingly harmonised body of transnational and international civil law as a response to the globalisation of the market economy, has emerged. All these changes point to the need for the reexamination of the civil Code and a reconstruction or reform of the Code itself, in Japan and in Korea. It is also worthwhile to attempt the future model of the civil Code based on the common experience of the asian country. This study is also, so utile and necessary to this work as a basic reseach. This reseach, starting from the analysis of the Meiji Civil Code reforms and its reform motives, is very important to us, who have the same text on the period and prescription but don t have enough its motifs, for the study of legislator s intent. For a more complete study, needed are other comparative studies between german law, french law, swiss law, japanese law and korean law, in this area(period, prescription, etc.).