土地所有權制限에 關한 硏究 : 우리나라의 土地利用權制限을 中心으로

우리나라 토지이용권 제한을 중심으로 토지소유권 제한을 연구했다.

It is widely known that land is an essential element for human existence. However, the land important for human existence like this has the quantitatively-fixed quality, while the population is increasing by geometic progression all over the world. Accordingly, mans's desire to possess, the population's geometric progression, and land's quantitively-fixed quality cause more serious problems of modern land ownership, in modernization. So the modern welfare state is putting many limitations on land ownership according to its idea, in order to utilize the quantitvely-fixed land efficiently for everybody's welfare life.

But in demanding the sociality and the public nature of land ownership of the people in a democratic capitalism country tinted with the past idea of land ownership, on the premise of the present-day social conditions, and in trying to put limitations on land ownership rationally, many ideological, legal, and realistic problems are raised. In this study, I tried to help, even a little, the legislative activities in solving land ownership problems in the future, by investigating the legal limitations on land ownership-the legal problem of the above problems, by indicating problems raised due to these limitations, and by suggesting a few improving plans of them.

To sum up my suggestions to the improving plans of the current land-related laws and regulations, it is as follows : First, we should seek for the harmony of the theory of 'public idea of land' and the realistic laws and regulations of land ownership limitation ; Secondly, we should establish the legislative measures of the appropriate compensation for the public infringement on land ownership ; Thirdly, in case of land dealings, we should introduce the fair deed system in the mutual agreement of real right ; Fourthly, we should seek for the harmony of the reality of power specialization of land ownership and the scientific principles ; Finally, we should plan the elastic and systematic development of the city, by adapting the prohibition system, the addition system, or the licence system, according to the concrete conditions, instead of the method of land ownership limitation of the present enumerating prohibition provisions system.

In order to suggest the above improving plan, I adapted the study method of interpreting the current related land laws and regulations by referring to scholars' related theses, on the basis of internal and external books. Accordingly, I want the contents, which I suggested in this thesis, to help, even a little, the legislation of land-related laws and regulations in the future and to play a role in solving the more and more serious land ownership problems.

目次 = i 第一章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍 및 方法 = 3 第二章 土地所有權槪念의 變遷 = 4 第1節 序說 = 4 第2節 土地의 特性 및 土地所有權의 法的性質 = 6 1. 土地의 特性 = 6 가. 土地의 自然的 特性 = 6 1) 不動性 = 6 2) 永續性과 不增性 = 7 3) 相隣性 = 7 나. 土地의 人文的 特性 = 8 2. 土地財産權의 構造 = 8 3. 土地所有權의 法的性質 = 9 第3節 土地所有權 槪念의 變遷 = 12 1. 序說 = 12 2. 古代의 土地所有權 = 13 가. 古代로마의 土地所有權 = 13 나. 게르만의 土地所有權 = 15 3. 中世 封建的 土地所有權 = 16 4. 近代的 土地所有權 = 17 5. 現代的 土地所有權 = 19 第三章 土地所有權의 私法的 制限 = 21 第1節 序說 = 21 第2節 民法上의 土地所有權 制限 = 22 1. 信義誠實의 原則 = 22 가. 意義 = 22 나. 判斷基準 및 效果 = 23 2. 權利濫用禁止의 原則 = 24 가. 意義 = 24 나. 判斷基準 = 24 3. 土地所有權의 範圍에 대한 制限 = 26 가. 民法 第212條에 의한 制限 = 26 나. 地下水와 溫泉의 土地所有權 制限 = 27 4. 相隣關係 = 28 가. 隣地使用請求權에 의한 制限 ( 民法 216條 ) = 28 나. Immission의 禁止에 의한 制限 ( 民法 217條 ) = 29 다. 不可避한 事情에 의한 制限 ( 民法 218條 ) = 29 라. 周圍土地通行權에 의한 制限 ( 民法 219條, 220條 ) = 30 마. 물에 관한 相隣關係 ( 民法 221條 내지 23