農地上의 農作施設 費用 回收 方案 = Measures of Recouping the Cost of Farming Facilities on Agricultural Land

농지 임차와 농작시설 투자비용의 회수 방안을 연구했다.

After the farmland reform, 1950, Korea agrarian system had been based on the 'and-to-the-Tiller' Principle and independent farmer, but, in 2009, the system and the principle could not be existent anymore considering 45.9% extent of leasehold farmland and 61.9% people who rent the farmland. For this reason, a system of farmland lease took root naturally. Nevertheless, it is the reality that there is not enough proper system for protecting the farmland lessee who invest in farming facilities and supporting the high-priced equipment. The scale of agriculture particularly has been expanded such as farmland preservation and professional farmer promotion as the pivot of agricultural management.

Under the changes, now nationally a number of farms cultivate special crops of greens and fruits in PVC(vinyl)greenhouses as the part of being changed the way of production and the kind of crop. But, in the case that the ownership of land is transferred being separated from farming facilities, there is no way to collect the investment costs for the tenant who install the whole facilities for cultivation regardless of the person is a lessor or a lessee of the land. Therefore, it is urgently needed to plan for collecting the costs for the lessee. Along with the self-reflection of current law limitation to overcome legal absence, the followings indicate necessity of legislation.

Firstly, there is legal limit in the existing law to call the investment money in for a farmland lessee. In The Agricultural Land Act, it only prescribes written agreement principle of farm lease, lessee status succession, implied renewal of a contract, etc. As the rest details are left with the general civil law theory based on a free contract, the status of the farm lessee has been weaken. Secondly, the existing civil law guarantees, for a estate leaseholder, appraisal right of dissenting ground article and that of dissenting appurtenances, and collecting way for the estate leaseholder, under a lien, but it does not do so for the farmland lessee.

Although the farmland lessee has to cost the earth to the farm management, unlike the estate leaseholder in civil law, retrieving the investment on the farming facilities can not be guaranteed. However, given the PVC greenhouse agriculture has been wide spread throughout the country, the high cost and the powerful strength of farming equipment has been proven differently from 1970s. So, the way to retrieve the investment must be required by a special law like the estate leaseholder under a law for protection of housing tenants or that of commercial building tenants. Finally, there are three means to promise to collect the investment.

First of all, to a PVC greenhouse which does not have registration, it should be given as a building when the greenhouse satisfies the conditions of reasonable cost and strength. For this, it is wanted to reinterpret the existing concept of building to the suitable one. Especially, like an open-end cattle shed recently legislated and being in force, it has to open the possibilities of registration for the PVC greenhouse as the building by an adequate interpret for social need and use. Second of all, farmland lease contract term is a top priority for collecting the costs, and for this, a leasehold registration claim system should be legalized.

Third of all, it must be required in the Agricultural Land Act that farming facilities costs be a codicil to a registration on a farmland lease. On that account, in case that the leasehold farmland goes through an auction, a disposal en bloc claim of farmland and the facilities on it are able to be guaranteed by the claim of the farmland lessee, and opposing power to a land acceptor for protecting the facilities will be given. To conclude, the farmland lessee should be guaranteed a farmland lease registration claim to retrieve the investment.

It is necessary to be regulated on the Real Property Registration Act to be regarded the PVC greenhouse as a building, and a special law for farmland lessee to protect the farming facilities costs from the land acceptor has to be established as well. And plus, by doing a codicil to a registration for farming facilities cost on lease registration, the guarantee of a disposal en bloc claim farmland and allotment demand under a law of compulsory execution should be legalized on The Agricultural Land Act.

Through these ways, the right of nearly 61.9%farmland lessee will be able to be protected in a goodly portion, and the investment on facilities such as PVC greenhouses can be collected by expanding the farming scale business.

제1장 서 론 1 제1절 연구의 목적 1 제2절 연구의 범위와 방법 5 제2장 농지임대차와 농작시설비용 회수의 문제점 7 제1절 서설 7 제2절 농지임대차와 관련된 법률의 연혁 8 Ⅰ. 농지개혁법의 제정 8 Ⅱ. 농지임대차관리법의 제정 8 Ⅲ. 농지법제정과 농지임대차 9 Ⅳ. 농지법개정과 임차인 보호규정의 대폭적 폐기 10 제3절 농지임대차와 농작시설 현황 12 Ⅰ. 농지임대차 현황 12 Ⅱ. 농작시설 현황 13 1. 비닐하우스의 종류 및 시설비 현황 14 2. 자동화비닐하우스(08-자동화-1형)의 공사원가 계산서와 순공사비 합계표 16 3. 온실시설 설치현황 18 4. 2009년도 농어업재난 복구비용 산정기준단가 21 Ⅲ. 농작시설에 의한 농작물 재배 현황 22 제4절 농작시설비용 회수의 문제점 23 제3장 현행 민법상 임차인의 시설비용 회수 방안과 농지임대차 에 대한 적용의 한계 24 제1절 서설 24 제2절 민법상 부동산임차인의 시설비용 회수 방안 25 Ⅰ. 부동산임차인 보호의 필요성 25 Ⅱ. 지상물매수청구권에 의한 보호 25 1. 의의 25 2. 지상물매수청구권의 제도적 기능 26 3. 지상물매수청구권의 성립요건 28 4. 지상물매수청구권행사 29 Ⅲ. 임차인의 부속물매수청구권 33 1. 의의 33 2. 부속물매수청구권의 제도적 기능 34 3. 부속물매수청구권과 비용상환청구권 35 Ⅳ. 유치권 36 1. 의의 36 2. 유치권의 목적물과 채권의 견련관계 37 3. 유익비상환청구권과 유치권 37 4. 유익비의 성립요건 38 5. 유익비상환청구권의 성립과 법적효과 42 제3절 기타법상 임차인에 관한 규정