相隣關係의 法理에 관한 硏究 = A Study on the legal principle of neighbor relationship

인접 부동산의 합리적 이용을 위한 상린관계 법리를 연구했다.

The real estates, centered on the land, inevitably place themselves adjacently to one another. If the owners of adjacent real estates propose their own rights of utilizing their properties extremely, it would not be possible for any of them to make a rational utilization of his real estates. Only when they cooperate and agree to each other, their rational utilization of their own real estates could be guaranteed. Nachbarschaft means a legal relationship by which the rights of the owners o adjacent real estates are to be somewhat regulated, on which the concerned owners are to be charged with the obligation of cooperation, and by which the utilization of adjacent lands could be coordinated.

The benefit, coming from the law of neighbor relationship, is called Nachbarrecht. This dissertation is and analysis on th legal principle of neighbor relationship in Korea. Aiming at a peaceful settlement of neighbor-relationship problems, the thesis tries to figure out a basic legal principle and proper standard for Nacharrecht. The thesis is composed as follows: In Chapter 2, the thesis analyses the concept and nature of Nachbarschaft and Nachbarrecht. Chapter 3 surveys on the various interpretations and application of Nachbarschaf in the present Korean Civil Code, together with its problems.

Chapter 4 tries to reveal the standard of Nachbarschaft, its legal principle in the public code, and the coordination and infringement of neighbor rights, based upon the major legal principle of Nachbarschaft. Concerning the problems and the positive measures for the Nachbarschaft in Korea, the dissertation proposes the following interpretations and applications of Nachbarschaft : 1. A standard should be made, based upon the idea of human respect; 2. The standard should be made, based upon the idea of human respect; 3. All the parties concerned should accept the obligation of recognition and endurance within the normal boundary.

Nachbarrecht is primarily based upon th principle of No-compensation. And yet, a certain system compensation for peaceful settlement should be positively induced. 4. The subjective of Nachbarrecht collides with the objective of endurance duty on the equal dimension. In this case the legal decision should be made by the principle of mutual benefit and the principle of normatic coordination. 5. Whether public or private, the law aims at a peaceful society, and the proper measures for the citizens to be guaranteed their rational life. This concept is not very far from the idea of neighbor relationship. The public law and the private law should not be severely differentiated from each other.

The principles in the private law should be observed and the regulatory purpose in the public law also be respected, both harmonizing each virtues. The present law of neighbor relationship in Korea contains some limitations in its covering the contemporary troubles concerning Nachbarshaft. The law is to be partially revised or a special law is to be legislated. The main ideas in the new law should contain the following items. 1. The special law to regulate the neighbor relationship in the space and the underground in required to be legislated.

This law should substantively cover the neighbor troubles in the space which have been raised by the development of air transformations, and the usage of water in the ground. And it also should cover the utilization of underground so as to settle the problems caused by the development of civil engineering and the passage of subway, and so on. 2. The limitations in Civil Code Art.217 should be amended and supplemented. The Code should not be thought of as an illustrative special regulation similar to those on neighbor relations, but it should be interpreted as a general and primary regulation on the Nachbarrecht.

A compensation system for coordination should b stipulated in the Code and the troubles can be settled through a separated legal system to apply and deal with the endurance duty and infringement of neighbor relations by the application of legal principle of Nachbarschaft. 3. A special law, for example, "the neighbor troubles coordination law," should be legislated. With this law all the conflicts concerning Nachbarschaft can be consistently regulated and solved.

In particular, the local community can establish a committee of coordination for the neighbor conflicts so that it can integrate all the regulations concerning Nachbarschaft scattered in the public law as specific articles in the Civil Code. The committee is in charge of the investigation of neighbor infringement and the rapid and fair settlement of its troubles. 4. A Collective Litigation System should be introduced. In view of the fundamental legal principle in Nachbarschaft, neighbor relationship is not restrained to the relations between or among the owners of real estates.

For the settlement of the collective litigation matters concerned with neighborhood caused by the contemporary collective society, the system of collective litigation, though it is under positive consideration, should be immediately legislated. 5. An incessant survey on the social customs should be carried on. Through a continual investigation of social customs, its results should be reflected in the legal system in which the troubles could be solved. With result of this study on neighbor relationship, the following effects can be expected: 1.

The neighboring land-owners can have a modern standard for boundary and limitation in their usage of their land when they get into the conflicts conceding their use of land. 2. The regulations of neighbor relations which are sparsely scattered in the public and private codes can be furnished with their theoretical foundation. With this new foundation, the other regulations concerned could be typed and integrated. And the conflicting parties can reach an agreement even when they propose each different legal code. 3. With a clear explication of the legal principle of Nachbarschaft, this

목차 第1章 序論 = 1 I. 問題의 提起 = 1 II. 硏究의 目的 = 4 III. 硏究의 範圍 = 6 第2章 相隣關係의 理論的 背景 = 8 第1節 序說 = 8 I. 相隣關係의 意義 = 8 1. 相隣關係의 槪念 = 8 2. 相隣關係의 內容과 形式 = 9 3. 相鱗權의 成立 = 10 II. 相隣關係法의 法的 性質 = 13 1. 形式的意味의 相隣關係法과 實質的意味의 相隣關係法 = 13 2. 民法上 相隣關係規定의 任意性과 强行性 = 14 3. 相隣關係法의 準用 = 15 III. 相隣關係와 慣習法 = 17 1. 慣習法의 效力 = 18 2. 地方的 慣習 = 18 3. 相隣關係에 있어서 慣習法 優先 = 18 第2節 土地所有權制限과 相隣關係 = 20 I. 土地所有權의 特徵 = 20 1. 土地所有權의 槪念 = 20 2. 土地의 特殊性 = 22 3. 土地所有權의 變遷 = 24 II. 土地所有權制限의 法理 = 29 1. 土地所有權의 內在的 制限과 社會的 拘束 = 29 2. 利益의 調和 = 30 3. 私有財産制度와 比例의 原則 = 31 III. 土地所有權 制限의 態樣 = 32 1. 土地所有權 制限의 多樣性 = 32 2. 土地所有權 絶對性 制限에 의한 分類 = 33 3. 內·外部的 區分에 의한 分類 = 36 4. 制限方法에 의한 分類 = 38 5. 制限內容에 의한 分類 = 40 IV. 土地所有權制限으로서의 相隣關係 = 41 1. 相隣關係法에 의한 制限 = 41 2. 相隣關係의 公·司法的 關係 = 43 3. 補償金 支給의 問題 = 44 第3節 相隣關係의 法史學的 考察 = 44 I. 古·中世의 相隣關係 = 45 1. 로마에 있어서의