權利客體로서의 土地와 그 用益의 限界

권리객체로서 토지의 성격과 토지 이용의 한계를 살펴본다.

Since old times land has been cultivated to yield many sort of products. From the point of production land is a very important means of production and it should belong to the farmer as a matter of course. But legally it has not always been so. Specially modern land ownership presupposes a monopoly of certain persons to consider certain portions of the globe as subject to their disposal, where their private wills reign supreme to the exclusion of any influence of others using it, lend it, sell it or leave it by will. Recently due to its publicity and sociality the land ownership is thought not to be absolute, that is the landowner is subject to characteristic prohibitions and limitations.

In connection with these points writer tried to examine the characteristics of landownership and its prohibition and limitation. "Personal ownership" of land is necessary not only for the rights and interests of owner but also for the continuance of free society itself. Specially in the capitalist era land ownership played on important roll. Because land ownership could directly or indirectly become capital by means of its complementary institution. For instance the landlord leases out his land and receives the ground rent which becomes capital to promote the material abundance of modern society.

In relation to this fact writer tried to examine agricultural lease as complementary institution of landownership. Landownership fulfills its social functions by menas of the complementary institutions as well as the original powers. The existing legal system prohibits agricultural land to be leased in any way, because for the benefit of farmer agricultural land should belong to them. But agricultural condition has undergone a change in recent 20 years. In relation to this state of affairs the writer examined the regulation concerned prescribed in the Agricultural Land Reform Law.

The writer concludes that notwithstanding the prohibition and limitation of landownership owing to social necessity, it is worth while to preserve personal landownership complemented by the subsidiary institutions as long as man wants to live in the free circumstances. Speaking on short landownership is a least condition freely to live and agricultural lease is a kind of legal transactions to use landed property.