인허가에 의하여 발생하며 물권으로 간주되는 권리의 변동에 관한 법리와 법제 개선방안

Abstract

Rights including mining rights under the Mining Act, fishing rights under the Fisheries Act,and management and operation rights under the Private Investment Act on Infrastructureare all rights granted from administrative dispositions by administrative agencies and areconsidered real rights under the law. These are types of rights that arise only when apermission is granted, and the right may be extinguished by an administrative dispositionrevoking the permission. In this article, these types of rights are referred to as ‘deemed realrights.’Whether 'registration' should be a requirement for effectiveness of the changes indeemed real rights was reviewed based on the civil law theory. Since the occurrence of adeemed real right due to an administrative disposition is not based on juristic acts, it seemsreasonable to view that a right is granted even if a registration is not completed. Whenlooking into the majority theory and the judicial precedents that do not require registration forthe extinction of superficies following the exercise of the right to claim extinction, it shouldbe interpreted that the extinction of real rights due to revocation also does not requireregistration. From a legislative policy perspective, there may be meaning in requiringregistration for the occurrence of real rights due to administrative disposition, but legislationrequiring registration for the extinction of real rights due to administrative disposition needsto be approached more carefully because there may be side effects in the operation of thesystem. Based on the interpretation above, improvement is needed on legislation regarding realrights granted under administrative dispositions. First, individual laws must be organized ina unified and systematic manner to prevent changes in real rights from being stipulateddifferently without reasonable grounds. Second, related laws should be revised to increaseconsistency with civil law theory on changes in real rights. Third, it is necessary to reorganizeadministrative legislation so that the management agency can register for termination exofficio when the real right is extinguished due to revocation.