中華人民共和國 物權法의 特徵에 관한 小考

중국 물권법의 제정 배경과 주요 특징을 고찰했다.

In China, generally the ‘Property Rights’ are defined as rights that can be dominated directly, and enforceable against all other people. Although China has considered the ‘Property Rights’ as an indispensable concept in the Civil Law System since 1980, none of the Chinese laws or regulations had used such concept until the ‘Property Rights Law’ went into effect in 2007 But, The Property Law of the People's Republic of China was adopted by the 5th Plenary Session of the 10th National People's Congress in March 16, 2007 and went into effect on October 1, 2007.

As the first property law getting into effect in PRC, it significantly explained the nature of Property Law with Chinese characteristics. Moreover, as the newest Property Law among the main countries in the world, it caused close attentions from all over the world. Although it had been pointed out that the modification of The Property Law, which overcome the limits of private property so as to support the economic activities in market under the Socialist System, is indispensable, such work had still been on heavy progressing.

The reason is that, compared with The Chinese Contract Law and The Chinese Security Law, The Chinese Property Law is one of the most indigenous laws and as for one of them, it is closely related to the existence method or an economic structure of a nation. Because the private property rights, which are advocated by Property Law, may protect the unjustified benefit that happened during the reformation, or immobilize the widen gap between the rich and the poor, the biggest problem that it may destroy the socialistic position of communist China happened, which well reflected the economic psychology to specific risks during the legislation.

The trace of the claims could be found in the law itself, that The Property Law of China is an unconstitutional legislation. Particularly, it is easy to guess from the each real right and the reservations about the regulation of supervisory authority of the nation and etc, that The Property Law of China that adheres closely to the public ownership of the land and protects the national property, and it establishes law and order in harmony to private ownership will accompany many technical difficulties. The disputed issues should be taken into consideration during the legislation.

Taking the transfer of property right as an example, which also caused big issues in South Korea's adoption of new Civil Law, regarding to this issue, it is seen that The Chinese Property Law did not adopt the formalist principle as that of South Korea, but adopted the Autonomy of Will, which is similar with Japan Property and France Property Law. According to this, The Chinese Property Law which just enforced can be considered as an attractive one. As it is generally known, many foreign companies including South Korea are participating in investment in China and their business activities are vigorous at the moment.

Therefore, it is identified that the enforcement of the new enactment, the right of the land for enterprises and the effect of the security interest has a very large effect in Property Law of China. Being implemented in October 2007, it seems that a research review and an introduction about Property Law of China in South Korea are essential as soon as possible in the light of the importance.

Thus, this paper introduces the passage of The Property Law of China enacted, reviews the relationship between The Constitution Law of Korea and also gives a full overview of the composition and characteristics and analyzes the features and significance of The Property Law of China compared with Property Law of Korea.

제1장 연구의 방법 빛 범위 1 제1절 연구의 목적 및 사회적 배경 1 제2절 연구의 방법과 범위 2 제2장 中國物權法制定經緯와 憲法과의 官階 3 제1절 中國物權法의 制定經緯 4 I. 中國物權法 制定前의 常況 4 II. 中國民法典制定의 일환으로서 中國物權法 制定 5 III. 中國物權法制定의 經緯 6 제2절 中國物權法의 誕生과 憲法과의 關係 9 I. 중국물권법의 제정과 중국 헌법 9 1. 근대적 물권제도의 형성과 확립(1930년-1949년) 9 2. 현대중국에 있어서 근대적 물권체계의 붕괴(1949년 10월-1978년) 9 1) 물권에서 소유권으로 9 2) 50년대 민법전초안 10 3) 60년대 민법전초안 10 3. 현대중국에서의 "物權"의 재발견(1979~ ) 11 1) 80년대의 "物權宣言" 11 2) 1988년 헌법수정안 2조 - 토지유상사용제도 12 3) 90년대의 담보법 12 4. 중국물권법의 제정과정 13 1) 신자유주의자의 물권선언 13 2) 國情을 踏襲한 物權法草案 14 3) 신좌파에 의한 물권법초안의 비판 14 4) 이데올로기의 그늘에 있는 물권법초안 15 5) 사회주의와 자본주의 사이에서 만진창이된 물권법 16 5. 중국물권법의 구조와 특징 16 1) 舊法(中華民國期法)과의 연속 16 2) 물권법의 구조 16 3) 중국물권법의 구조적 특징 18 6. 중국물권법초안과 중국헌법 19 1) 2004년 헌법수정안 19 2) 중국물권법초안을 둘러싼 이데올로기적 논쟁 20 3) 中國物權法草案의 公法化 22 4) 중국물권법초안의 공법화 25 7. 中國物權法에서의 進步와 不足 27 1) 私法性을 뛰어넘는 물