개별 법률상 물권에 관한 법리적 고찰

Abstract

The extent of the definitions of real rights that can be the object of real rights is now being expanded according to the rapid development of society and economy. This trend enables many project operator get benefit from the infrastructure facilities for a certain period within the scope of total project cost. Korean Civil Law has a provision, article 185 that legal principle of real rights is defined as kinds of real rights. According to Article 185, the Civil Law defends no real right can be created at will other than ones provided for by law or customary law. However, it was defined by the Mining Industry Act(Article 3), the Act on Construction of Dams and Assistance to their Environs(Article 2), Act on the Development, Management, etc. of Marinas(Article 21), Act on Public-Private Partnerships in Infrastructure(Article 26), Fisheries Act(Article 2), Fishing Villages and Fisheries Harbor Act(Article 29), Toll Road Act(Article 10), Framework Act on Railroad Industry Dvelopment(Article 26), Aviation Act(Article 105-2), Harbor Act(Article 16), and etc. These laws have provisions, the certain (facilities management) rights shall be considered as a real right and unless otherwise provided for in this Act, the provisions of the Civil Act shall apply mutatis mutandis thereto. Also, those have provisions, the creation, extinguishment, and restrictions on the disposition of the right to manage facilities shall become effective upon comletion of registration of the right in the register of rights. It gave rise to complications between the civil law and the individual laws in apply and interpretation on real rights. This study attempts to harmonize the real right for usage along with the real right in the Civil Law. The study consists of four parts; the first including the instruction, the second overviewing the definitions and the distinctions on real right under the individual laws. The third discussing the legal principles of the legal nature, a thing in legal sense, real action, duration of real rights, public notice system between the real rights under the Civil Law and the provisions for the real rights in the individual laws. In particular, I propose a reinterpretation of facilities management, which shall be considered as a real right. Even a holder of facilities management has right to its as quasi-real right, not land ownership in traditional civil law theory. Finally, I conclude a need for extent to the definitions of the real rights in the individual statutes and a modify the related laws and revise the provisions of the real rights out of consideration for civil law in Korea.