英國 土地所有權의 特質 = The Characteristicof Land Ownership in England

영국 토지소유권의 법적 특질과 봉건적 구조를 살펴봤다.

Corresponding to two systems of justice, 'Common Law' and 'Equity', interests in land are classed as legal estates or equitable interests. The feudal structure was imposed after the Norman:Conquest 1066. The theory of the common law is that all land is held of the King who is the supreme feudal lord. Tenants may hold directly or indirectly from the King. The tenants owed their lord the performance of services for the grant of land. Feudal services became to a certain extant standardised. Each of these sets of services was known as a tenure. Land held in tenure was also held for an estate for some period of time.

On the other hand, equitable interests in land have their origin in the use, later the trust. The Law of Property Act 1925 permitts two estates only to exist as legel estates, one 'fee simple absolute in possession' and one 'term of years absolute', converting the other estates into equitable interests. The legal estate, 'fee simple absolute in possession' is the largest, most complete bundle of rights Englishman can hold in land. That can be held by a person and his heirs forever, or until his government can no longer protect. Those who hold that legal estate can occupy and use, build, mine, drill, farm, creat other lesser estate, rent or lease, sell, devise by will, abandon the land.

And that can exist without actual possession of land. To these extents the concept of 'fee simple absolute in possession' is much similar to that of the right or ownership of land in the Continental Law. But when land is trespassed or infringed, the actions (the action of trespass and the action of ejectment are allowed) are closely related to possession of land. English Law has not known the legal protecting means of land ownership on the basis of abstract title itself. This is the difference between English Law and Continental Law. The reason of that difference can be found in the historical evolution of 'seisin' in England.

In the past, seisin was so cardinal and important that one may almost say that the whole system of English Land Law was law about it and its consequences. In the medieval times seisin suggested the very opposite-pease and quiet. A man who was put in seisin of land was 'set' there and continued 'sit' there. Seisin contatined not only title but also actual possession of objects. Every proprietary right must have a seisin at its root. Without livery of seisin conveyance of proprietary right was impossible and inconceivable. After the medieval times, seisin gradually came to be converted into abstract notion.

Conveyance of proprietary right was getting to be possible without delivery of actual occupation. Finally the word, 'possession' which meant only actual occupation of objects came to appear. When in seventeenth century the action of ejectment had been perfected as a general action for the recovery of land, it shifted the basis of title from the feudal concept seisin to the simple fact of possession. Consequently the basic difference between English Land Lsw and Continental Land Law comes from the following fact.

While continental countries had sweeped away their feudal land law and legislated modern land law by adopting the Roman Law, England has been transfiguring the feudal land law gradually to modern land law within the principle of 'stare decisis'.

Ⅰ. 序論 Ⅱ. 英國 土地所有權法 槪觀 (1) 土地所有權의 歷史的 發達過程 (가) 物權의 區分 (나) 普通法上의 物權法理 (다) 衡平法上의 物權法理 (2) 土地所有權의 移轉方法 (3) 土地所有權의 保護手段 (가) 侵害訴訟 (나) 回復訴訟 Ⅲ. 英國 土地所有權法의 基礎 (1) 中世 (가) 土地所有權의 移轉方法 (나) 不法侵奪에 대한 救濟手段 (2) 中世 以後 (가) 土地所有權의 移轉方法의 變化 (나) 侵奪에 대한 救濟手段의 變化 Ⅴ. 結論