耕者用田을 위한 農地賃貸借制度의 改善方案

경자유전 원칙에 따른 농지 임대차제도의 개선방안을 연구한다.

ABSTRACT Improvement of Farmland Leasing System f or L and to the Cultivators P rinciple Lee, Chang Ho Major in Real Estate Graduate School of Real Estate Studies HanYang Cyber University The First Korean Constitution prohibited farmland leasing of any kind, including sharecropping and leasing, under the Land to the Tillers Principle. This principle is still succeeded by the Korean Constitution and the Farmland Act today with slight differences in degree or terminology, so farmland leasing is currently prohibited in principle.

Farmland ownership and leasing are prohibited, but in reality, illegal farmland leasing cannot be stopped due to non-farmers' ownership of farmland and speculative purchase of farmland disguised as self-cultivation. According to the 2010 records of the Statistics Korea, 47.9% of farmland is leased and more than 62.2% farm households are leasees. Also, 20% of sale of farmland - 140 - violates the Farmland Act. Most of illegally acquired farmland is leased despite that it is prohibited by the Farmland Act. In 2007, for example, 173,497 people were exposed as unlawful beneficiaries of rice subsidy, but only 13% of farmland in the Farmland Registers was reportedly leased.

After that, leasing farmers were seriously confused because the non-farming owners, who were the unlawful beneficiaries of rice subsidy, replaced written agreements with verbal agreements to disguise as self-cultivators. This means that limited farm ownership and prohibited farmland leasing hinder agricultural productivity and reasonable use of farmland. This study was conducted to identify the problems that interfere with the Land to the Cultivators Principle to suggest possible improvement measures.

The conclusion of this study is that the Land to the Tillers Principle, which is an unrealistic rule, is still adopted by the Constitution and the farmland system although it has been half a century since the establishment of the Constitution and hinders the development of modern agricultural management. As the lifestyle and the economic conditions have changed, the Land to the Tillers Principle should also be changed. Now, the land ownership or leasing system should be amended for those who own, cultivate, and/or use farmland. The leasing system was amended and added to the Farmland Act in 2012. The terms on leasing period were added to set the minimum period to three years.

Considering that agriculture is a long-term project, requires high-priced agricultural machines, and advanced countries set their minimum period at nine years, it - 141 - would be reasonable to limit the period to no shorter than three years and no longer than nine years and allow the rights to extend agreement for up to nine years. For leasing rates, the regulations have been abolished and the Civil Code (Sections 618 and 633) is currently applied to the payment of lease, time of payment, and cap of leasing rates. However, it would be more reasonable to stipulate terms on leasing rates along with the rights to claim lease increase/decrease in the Farmland Act.

The best measure would be to enact the special「Farmland Lease Protection Act」considering the specialization of agriculture to protect organized and stable agricultural management of leased farmers. Some of the beneficial programs to protect and benefit farmers include farmland banking system, farmland registers, agricultural management entities, rice subsidy system, and exemption of transfer tax for self-cultivators with eight years of history. Despite their intention, however, it has been found that many farmers are actually not benefiting from these systems.

The reason why these systems are not beneficial to leasing farmers is because non-farmers disguise as self-cultivators and they cannot report themselves as farmers. Non-farmers disguise as self-cultivators to have the transfer tax imposed on self-cultivators exempted. Their expedient is to move their address to a farm household to disguise as self-cultivators and hide the fact of their illegal ownership of farmland to avoid farmland disposition order and enforcement of penalties.

They benefit from various benefit programs during the period of ownership and they - 142 - report themselves as self-cultivators by providing proof documents, such as farmland registers, agricultural management entities, and rice subsidy statement when they sell the property after eight years. In result, they can save 0.2 billion KRW a year and a total of 0.3 billion KRW in taxes in five years. The problem is that the systems created for farmers are available for non-farmers with the proof documents they can provide as disguise farmers.

The Constitution's Land to the Tillers Principle should be replaced with Land to the Cultivators Principle and farmland ownership and lease prohibition system should be opened and liberated. The purpose of disguise farmers is to have transfer tax exempted, so an essential solution is needed. The key is to enact the 「Farmland Lease Protection Act」 and eliminate disguise farmers who report themselves as self-cultivators. ...................................................................................................................

Keywords: Land to the Tillers Principle, Land to the Cultivators Principle, Farmers, Self-cultivation, Farmland Lease <국문초록> 耕者用田을 위한 農地賃貸借制度의 改善方案 제헌「헌법」은 경자유전(耕者有田)의 원칙에 따라 농지임대차는 소작, 임 대차를 불문하고 아예 금지하였다. 현행「헌법」이나「농지법(農地法)」에서 도 정도나 용어의 차이는 있지만, 이 원칙은 그대로 유지되고 있어 농지임 대차를 금지하고 있다. 농지소유 제한과 임대차(賃貸借)를 원칙적으로 금지 하고 있지만, 현실은 비농업인의 농지소유와 자경(自耕)을 가장한 투기적 농 지거래로 말미암은 불법 농지임대차는 막지 못하고 있다. 2010년 통계청에 의하면 농지면적의 47.9%가 임차농지이고, 62.2%가 넘는 농가가 임차농이 다. 또한, 전체 농지의 20%에 달하는 매매가「농지법」을 위반하여 이루어 지고 있다. 불법으로 취득한 농지는 대부분「농지법」에서 금지하는 임대차 로 연결되고 있다. 한 예로 2007년 쌀 직불금 부당수령자로 적발된 인원이 173,497명이나 되었으나 이를 근거로 한 농지원부(農地原簿)상 임대차 면 적은 13%에 불과하였다.

그 후 쌀 직불금 부당수령자로 적발된 비농민 소 유자가 자경을 가장하고 은폐하기 위하여 임대차를 서면계약에서 구두계약 으로 하는 사태가 벌어져 임차 농업인들이 한때 큰 혼란에 빠지는 경험을 했었다. 농지소유 제한과 임대차 금지제도는 농업 생산성의 제고와 농지를 합리적으로 이용하는데 방해가 되는 요인이 되고 있