구한국기의 임대차 분쟁과 전세 관습－민사판결자료를 통한 접근－

Abstract

Chǒnsegwǒn(傳貰權, Chǒnse Rights), which is stipulated as a usufruct in the Article 303 of the Civil Code of Korea and ordinarily being used as a way of house lease, has been regarded as a unique and unusual existence in the Korean civil law on the grounds that it developed on the soil of the Korean traditional society and, therefore, was devised to be inserted into the Code based on the Korean custom without referring to the Western and Japanese precedents. Its origin and development, however, still remain unclear. Some scholars pointed out that the Chǒnse custom originated in the custom of House Chǒngdang(典當), a kind of mortgage, and could be influenced by the Chǒn(典, Dien Right in Chinese) of traditional China. Meanwhile, other scholar argued that the Chǒnse custom had its origin in the Hwantoe(還退), a land custom similar to Chines Dien, with compositive characteristic as a conditional, or revocable, purchase and Anthichresis, formed in the late period of Chosǒn Dynasty. For lack of sufficient evidence, the Chǒnse’s origin and legal characteristic have been discussed depending on a conjecture. This article intends to approach its realities and to verify the statements about it within the Korea’s Custom Investigation Report published by the Chosǒn Government-General(the last 3rd edition published in 1913). The Annals of Chosǒn Dynasty and Seungjǒngwon Ilgi, or The Diaries of the Royal Secretariat, show that the Chǒnse custom or similar one was already prevailed in Seoul in the early 18th century at latest. According to the investigation of house lease customs done by the Privy Council of the Government-General’s in 1918, there were several Chǒnse-type customs called as diverse names, ostensibly similar to the name of the Hwantoe(還退), hinting at a possibility that they could have influenced the formation of the Chǒnse in a certain way or provided references for describing the structure and feature of the Chǒnse-type customs. The main materials used in this article are the decision records of courts located in Seoul : Hansǒng Court(1896~1908), and Kyǒsǒng District Court and Kyǒnsǒng County Court(1908~1910). This article outlines the civil disputes relevant to the custom, and analyzes the usage of the word ‘Chǒnse’ and its meaning-in-context; the practice of official confirmation of Chǒnse contract; the term, or period, and it concept; a practice and the legal treatment of the sublease or conveyance of a Chǒnse-ed, or leased, house by a lessee whether with lessor’s content or not; and the protection of or remedy given to a lessee against new owner and mortgagee. Some findings from court records do not coincide with the description and qualification about the Chǒnse custom in the Custom Investigation Report, such as about the conventional lease term, the ordinary choice for confirming the contract by authorities, and the possibility to lease a house formerly Chǒngdang-ed, or mortgaged, to another person. In explaining the legal aspect of the Chǒnse custom, researchers tend to accept the statements of the Custom Investigation Report without careful verification, and to move quickly to a question whether the traditional Chǒnse right had a quality as a real right or not. The problem, however, is not so simple. Especially the very short-term of the Chǒnse (100 days in most of cases) raises another question if it is appropriate or practically meaningful to assume that a Chǒnse right-holder(a lessee) enjoyed his right against a present or new owner, and could sublease, convey, or mortgage his right to the third party freely within the period of contract. In oder to understand the realities and legal aspects of the Chǒnse, we should consider a set of legal norms, the practical usage of house lease custom and money loaning, and the ideas of both law-enforcement agents and ordinary people, for all of which were collaborating to make not only the body of the custom but also its ambiguous face.