土地所有權의 制限과 그 限界에 관한 比較法的 硏究

토지소유권 제한의 법적 한계를 비교법적으로 연구했다.

Land is not only one of major assets, but also the foundation and environment of our lives. Besides, because land is so much essential to our existence and economic production, it is legalbasis for our society where the private ownership is established and performed. The concept of land ownership is changing from the ancient society to present society along with the human history.

And the system of regulating land ownership is also changing up to now. In our society, where the private ownership is recognized and protected, the land ownership is basically secured by The Constitution clause 23 and The Civil Law clause 211, but the detailed right and obligations can be regulated by law. By the nature of land, the use of land should be different from the other type of ownership, serving the interest of whole society and most of citizens. Land ownership, only when for national security, maintaining social order, and public welfare, might restrict by law. But, in this case, the basic and fundamentalaspect of land ownership should not be violated.

Especially, in the case of restrict on the ownership for social welfare, the balance between public interest and security of ownership, so-called balance principle, must be kept. Under the current Constitution, the restriction on the land ownership is only permitted by law, and the deprivation of land ownership by retroactive legislation is prohibited, too.

Furthermore, in this case, the human dignity and value as well as equity principle, balance principle, prohibition principle of excessive violation and compensation principle should be kept and applied in full scale. Therefore, the restriction and limit on the disposal, usage, development and selling of land might be done only by law in a predetermined way.

Even in this case, the fundamental aspect of land ownership cannot be violated, evading breach of Constitution. In addition, the restriction on the land ownership should follow the social and public purpose for national goals within the social welfare application. In short, in this society, even though it is the tendency of strengthening restriction on the land ownership, that restriction should be within the minimum level following the principle of protection of private ownership, and moreover, the legislation on the limit of land ownership should be logical and rational. Therefore, in this study, I research the detailed restriction and protection on the land ownership and related legislation.

In addition, I study the limitation on the private ownership, excessive regulation on land ownership, and the issue of dividing the ownership and development right. Through this study, I review whether the fundamental aspect of private ownership is violated or not and propose the rational method for limitation on the land ownership.

第1章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍와 方法 = 2 Ⅰ. 硏究의 範圍 = 2 Ⅱ. 硏究의 方法 = 3 第2章 土地所有權의 變遷과 制限의 根據 = 4 第1節 序說 = 4 第2節 土地所有權 槪念의 時代的 變遷 = 4 Ⅰ. 原始社會의 共同所有權 = 4 Ⅱ. 古代 그리스ㆍ로마의 土地所有權 = 5 1. 古代 그리스(Greece)의 所有權 = 5 2. 古代 로마(Roma)의 土地所有權 = 6 3. 古代 게르만(German)社會의 土地所有權 = 7 Ⅲ. 中世의 分割所有權 = 8 Ⅳ. 近代社會의 絶對的 土地所有權 = 9 Ⅴ. 現代의 所有權絶對原則의 修正 = 10 第3節 國家別 土地所有權의 變遷 = 13 Ⅰ. 英國 = 13 1. 大土地所有의 成立과 展開 = 13 2. 近代的 不動産 法制의 展開 = 15 Ⅱ. 프랑스 = 16 1. 人權宣言과 所有權不可侵의 原則 = 16 2. 프랑스 民法과 土地所有權 = 16 3. 몽타냐르憲法典(Constitution Montagnarde)에 있어서의 所有權 = 17 4. 나폴레옹法典(Napoleon法典)에 있어서의 所有權 = 17 Ⅲ. 獨逸 = 18 1. 獨逸 民法과 土地所有權 = 18 2. 바이마르憲法(Weimarer Verfassung)과 所有權 = 19 3. 나치스(Nazis)의 所有權 = 21 Ⅳ. 日本 = 23 1. 序論 = 23 2. 土地所有權 變遷의 歷史的인 特徵 = 24 Ⅴ. 中國 = 25 1. 中國의 土地所有制度 = 25 2. 不動産所有制度의 內容 = 29 Ⅵ. 우리나라 = 35 1. 近代以前의 土地所有 = 35 2. 近代의 土地所有 = 38 Ⅶ.