賃借權保護에 관한 硏究 = A Study on the Protection of the Right to Lease

도시 주택 임대차에서 임차권 보호의 역사와 제도적 쟁점을 연구한다.

1 . As the shortage of housing has become severe in urban areas due to concentrated populations, the protection of the right to lease has emerged as an important social issue, thereby exacerbating the need for the establishment of a theory regarding the protection of the right to lease. Accordingly, this thesis presents a study of the historical development of the right to lease system from the period of ancient Rome to the modern era in order to identify the dynamics of the relationship between lessee and lessor as a reflection of the society in which it exists, and to review the nature of the right to lease.

In addition, this thesis reviews modern legislation, academic theories and judicial precedents to compare them to the abovementioned historical changes in the social status of lessee and lessor in order to present the nature of the right to lease which is discussed in relation to the increased trend toward protection of the right to lease. 2. In ancient Rome, the right to lease was not fully guaranteed. A lessee's possession of a leased object was not a legal right to lease but a benevolent favor granted by a lessor. Therefore, a lessee was unable to rebuff the claim of a buyer or a lessor because the latter was the very part who had granted the favor.

The weakness of the right to lease in Rome was due to the lessee's social status being inferior to that of the lessor. The Roman Empire was an ancient cosmopolitan society in which Roman citizens and the nobles held the central position in no small part because of the slavery system. By exploiting abundant materials from conquered countries, Roman citizens enjoyed a dazzling urban life. Luxurious social gatherings of the noble class and pursuit of materialistic well being were prevalent, while agricultural and manual labor, which was left to the slaves, was disregarded.

Considering such a social environment, it is not strange that the ruled lessee- an outsider of the society- was not able to enjoy the protection of the right to lease. Therefore, the ruling class's right to claim was fully guaranted under the circumstances. In contrast, medieval German law strongly protected the right to lease. The right to lease in German society, the legal system of which was based on the equal relationship between men and was developed in the medieval cities, was different from that of Rome where a subordinate relationship existed between a lessee and a lessor.

The lessee class in German society were free citizens who had the right to vote and to become soldiers in rural areas, thus playing key roles in production activities. The German right to lease constituted a real right in private law, which made possible the acquiring of most necessities of life in the society thereby becoming the basis of production activities. Modern society was formed by overthrowing absolute monarchy and at￢tempted to promote the public interest with the establishment of ~he principles of free contract and of absolute right to ownership as guiding principles.

Therefore, modern private law interpreted the lease relationship in accordance with the principle of absolute right to ownership, and saw the right to lease as a restraint on that ownership. As a strong shift toward ownership developed in modern times, the right to lease became so weakened that most modern nations considered the right to lease simply an obligatory right. However, World war I served as a turning point in shifting the emphasis from civil law to social law, thus increasing the need to protect the right to lease. As modern capitalism has developed, the wealth of a nation has been concentrated in a small number of capitalists.

Meanwhile, most of the middle class and the poor have had to depend on capitalists for their office buildings and houses which are basic needs in life. Thus, unless the right to lease is protected, the lessee class will lose its very foundations. In modern capitalistic society, moreover, there is no social stability without the establishment of a viable middle class. This need for social stability, coupled with the demands of the middle and lower classes. has pressured modern society into developing increased protection of the right to lease. 3.

Accordingly, capitalistic nations today are attempting to strengthen the right to lease through the revision of existing law or by enacting new special laws. Academic theories and precedents are also moving toward increasing the counteracting power of the right to lease by expanding the free transfer and sublease of the right, and by placing restrictions on the termination of a contract during the contract period. 4. Finally. modern discussions about the nature of the right to lease have been centered on the trend toward the strengthening of that right, and there has been a tendency to conclude that the degree of protecting the right is determined deductively from its legal nature.

But this tendency is due to the lack of understanding of the nature of the right. The question of the protection of the right must be based on the social dynamics of the relationship bet ween a lessee and a lessor rather than being interpreted deductively by the nature of the right to lease. 5. The right to lease in each period and nation was strengthened as the lessee class emerged as a dominant power and weakened as that class lost its power in the society. In times of weakness, the right to lease was subject to the right to ownership which was regarded as the supreme right.

However, when the lessee class's power was strong enough to dominate the lessor class, the lessees could deny the supremacy of ownership and thus claim their equality with the lessor. The lessee class could then reject the right to ownership and degrade ownership to a subordinate level, thus eventually expelling the lessor's control over the lessee. The lessor's right, under these circumstances, would be limited to the collection of a certain amount of rent regularly. Thus. the question of

第一章 序論 第一節 硏究의 目的 第二節 硏究의 對象과 範團 第三節 硏究方法 第二章 比較法吏的 考察 第一節 社會的 變化와 貿借權 第二節 로마法上 貸借權 一. 貨貸借의 起源 1. 로마法源 2. 學說 二. 質貸借人의 地位 1. 貨貸偕의 槪念 2. 貸貸借人의 社會的 地位 3. 貨貸借人의 權利義務 三. 賃借權의 保護 1. Kauf bricht Miete 의 原則 2. 法源 3. 理論的 背景 4. 社會的 背景 5. Jhering의 古典時代 占有權說 第三節 게르만法上 質借權 一. 自由永貸借의 起源 1. 序 2. 學說 二. 自由永貸僧人의 地位 1. 自由永貸借의 槪念 2. 自由永貸借人의 社會的 地位 3. 自由永貸借人의 權利義務 三. 自由永借權의 保護 1. Gewere 2. 社會的 背景 四. 永情權의 變質 1. 永借權의 變化 2. 物上負擔의 成立과 그 排除 3. 近世的 所有權의 成立 第四節 普通法時代의 貨借權 一. 普通法時代의 社會狀況 二. 前期繼受 三. 後期繼受 四. 로마法 繼受에 대한 抵抗과 領邦의 受容態度 1. 繼受內容 2. 法의 分裂과 抵抗 五. 普通法上 貨倍權의 保護 1. 對抗力 2. 其他 第五節 近世法上 貨{昔權 一. 近世主社會狀況과 立法의 二大傾向 二. 近世各國의 貨f昔權 第六節 第一次 世界大戰 以後의 貸借權 第三章 現代法 解釋上 考察 第一節 現代質借權의 保護强化 傾向 第二節 對抗力의 强化 一. 貨借權의 債權的 構成과 對抗力 二. 各國의 規定例 三. 對抗力의 內容 1. 槪要 2. 物權과의 闕係 3. 二重貨貸와의 關係 4. 一般 第二者와의 關係 四. 妨害排除請求權 1. 槪要 2. 權利一般의 性質에서 求하려는 立揚 3