중국 물권법의 부동산물권에 관한 소고

중국 물권법상 부동산 물권의 법제와 주요 내용을 살폈다.

Abstract The Chinese Property Law was historically adopted by the 5th Plenary Session of the 10th Chinese National People's Congress on March 16, 2007 and went into effect on October 1, 2007. The Property Law is properly estimated as the newest property law among the main countries in the world. It is the law to overcome the limits of private property in order to support the reform, the open and the economic activities in market under the socialist system and to realize the harmonic society. It is also the most indigenous law with many Chinese characteristics.

On the other hand, it has accommodated good elements of the property laws in the legally developed countries such as Korea, Japan, Germany. The Property Law adheres closely to the public ownership of the land and protects the national property. But it also establishes rule and order to protect the private ownership. It is said that a unique feature of the Property Law is that legislators now accept that state and privately owned property should enjoy equal protection. Based on the socialistic principle the Property Law permits only the national ownership and collective ownership for the land and doesn't permit the right of private property for the land.

Therefore People need to and may be able to achieve the using right in accordance with the land using right system so as to use the land, though it is far from the right of private property in the capitalism countries. China has a unique management system for land usufruct. It is said to originate from nationalization of land in order to preserve socialistic public ownership of land. In China, land in metropolis belongs to the state and land in agricultural region belongs to the community. It is impossible for any individual to own the land. For the individual only the usufructuary right is permitted.

Land usufruct is a separate and independent concept from the land ownership. The Property Law recognizes agricultural land usufruct, state owned land usufruct and community owned land usufruct that are similiar to superficies and servitude. The distinction is made based on the different form of ownership of land. The land using right may be obtained by means of transfer, lease, allocation, purchase or equity contribution. Because each method involves different legal implication, requirements and procedures, foreign investors in China have to take all necessary steps to examine the origin of the land ownership and distinguish the nature of the method.

The Property Law makes provisions for security rights to ensure that an obligation is met, typically the payment of a debt. Basically it contains four elaborate chapters on security interests, namely, general provisions, mortgages, pledges and liens, and supplements the maximum amount mortgage as security for bank overdrafts, mortgage on identifiable movable property, mortgage on consortium assets, floating charges and pledge of incorporeal movables. The Property Law is an unprecedented achievement in Chinese legislative history.

It acknowledges the new and progressive Chinese national characteristics and consolidates a new approach to property law in tandem with the new Chinese political ideology. But the Property Law is not perfect. It itself should be improved for the perfect law through the cooperative efforts by all with first-hand experience and expertise and special statutes should be enacted to rectify the problems it doesn't meet.

目 次 第1章 緖論.......................................................................................................................1 第1節 硏究의 目的.........................................................................................................1 第2節 硏究의 方法.........................................................................................................4 第2章 物權變動法制와 物權的 請求權.......................................................................7 第1節 物權變動法制.......................................................................................................7 Ⅰ. 槪觀.............................................................................................................................7 Ⅱ. 公示原則.........................................................................................