傳貰權과 未登記傳貰와의 關係

Jeonse-Right and Unregistered Jeonse: A Legislative Unified Study

The Jeonse(傳貰; an antichrésis) right system under the Korean Civil Code originated from the real - lease system as a common law. It originally belonged to the common law that had been practiced in the trade of houses in Korean old downtown, but with the legislation of the Civil Code, it became the Jeonse right, which is a statutory real right(jus in rem). Accordingly, different from other properties laws modeled after Western legal systems, the Jeonse right under the Korean Civil Code is peculiar in that it came from the unique practice of Sino-Korea societies. In the process of Jeonse right legislation, a Jeonse system was divided into Jeonse rights and unregistered Jeonse, and consequently questions have been raised on laws applicable to unregistered Jeonse. What is more, the two have been divided completely as they are ruled by the Housing Lease Protection Act and the Commercial Building Lease Protection Act, which are special acts on civil affairs, respectively. In addition, with regard to building leasehold right, the scope of application of provisions related to Jeonse rights under Chapter 6 of Part II of the Civil Code is limited by the Housing Lease Protection Act (Article 12 of the Housing Lease Protection Act) for residential buildings and by the Commercial Building Lease Protection Act (Article 17 of the Commercial Building Lease Protection Act) for commercial buildings. Because land Jeonse rights exclude agricultural lands, they are limited to lands other than agricultural lands (Article 303‐2 of the Civil Code). Then how should these legislative problems be solved? In the process of amending the Korean Civil Code (the Part of Properties), it was proposed to absorb lease as a credit into Jeonse rights. This is considered an effort to solve the relation between Jeonse rights and unregistered Jeonse legislatively. The present study purposed to find methods to unify Jeonse rights and unregistered Jeonse as suggested since the legislation of the Korean Civil Code, and to activate Jeonse rights under the Korean Civil Code through legislative examination of the relation between Jeonse rights and unregistered Jeonse. We suggest to deriving legislative solutions for activating Jeonse rights based on experiences accumulated since the Civil Code on the Jeonse right system was enacted in Korea, 1958 and expect active discussions on the subject.