민사법제의 쟁점과 전망

Abstract

This year is a meaningful and glorious year in the history of Korea and the Korean civil law. Because this year is the 60th anniversary of the establishment of the Korean Government 1948, and at same time the 50th anniversary of the legislation of the Korean Civil Code 1958. Also 48 years have been passed since implementation of the new Korean Civil Code from January 1, 1960. Law constitutes a part of culture of a nation. Civil law is a core element of laws in a nation. Legislation of civil code means and symbolizes that the nation has its own unique legal culture. Further, it means that the nation has its own identity. Therefore, almost every new independent nation legislates its own civil code after its liberation. Korea has also legislated its own Civil Code after 10 years of the establishment of the Korean Government. The legislated new Civil Code has been different from the old Civil Code in its contents, which was the then Japanese Civil Code. Especially, in the part of the family law and the real property law of the new Korean Civil Code many unique contents have been prescribed, which have been differentiated from those of the old Civil Code. Since the legislation of the new Civil Code, the part of family law has been relatively well amended in conformity with social changes, but the part of property law has a little lacked in its amendment. Therefore, the property law in the Korean Civil Code has been not kept up with social and economical changes after its enforcement. In order to renovate the property law of the Civil Code, an amendment draft had been elaborated by a special committee under the Ministry of Justice after deep consultations for 5 years long from 1999 and it as a bill has been submitted to the National Assembly in 2004. However, it has not been taken into consideration and deliberation until now. It was automatically repealed as the term of membership of the National Assembly was expired at the end of May of this year. Maybe, a new amendment draft shall be prepared by the Ministry of Justice and submitted to the National Assembly once again. The amendment draft has contained so many controversial contents, against which many civil law scholars have strongly and sharply criticized. Without a sufficient consideration with the criticized contents by the special committee, the amendment draft has been elaborated and submitted to the National Assembly. It would be the most important reason, why the bill has been not deliberated by the National Assembly and has been automatically repealed. In the new amendment draft which will be prepared in near future, controversial articles shall be more deeply re-examined and more suitably modified for harmonization and balance with diverse opinions. Furthermore, in the new amendment draft the globalization in the civil law should be adopted and realized, of which trend is worldwide main stream in these days and of which symbolic law is the United Nations Convention on the Contract for the International Sale of Goods(CISG). Besides, many other tasks are assigned to academics of civil law in Korea. Firstly, uniquenesses of the Korean civil law shall be found out from the traditional law and modernized into the current Civil Code. Secondly, the socialistic civil law in the North-Korea shall be transformed into civil law suitable to the socialistic market economy. Thirdly, the common law (ius commune) in the North East Asian region shall be found out from common sources of laws and formulated in the future in cooporation with academics of neighboring countries.