민법 제646조 임차인의 부속물매수청구권의 임의규정화 제안

Abstract

Basically, the contract part, that is, §527 to §733 in the Korean Civil Code is governed by the principle of freedom of contract that includes the freedom to fix contract terms as the contract parties wish. Accordingly, most of the legal rules of the contract part of the Korean Civil Code are supplementary, not mandatory, legal rules that their application could be excluded by contract parties. However, there is social demand that a lessee as a traditionally second-class citizen should be protected, and thus considering this demand, Article 652 provides that any agreement entered by the lease contract parties in contravention of the provisions of Articles 627, 628, 631, 635, 638, 640, 641, and 643 through 647 which is unfavorable to either the lessee or sub-lessee shall be void. Therefore, now, Article 646 is a mandatory legal rule. According to Article 646, if the lessee of a building or any other structure has attached an accessory to such a building, etc. with the consent of the lessor for the benefit of the lessee’s use, the lessee may demand that the lessor purchase such an accessory at the time when the contract of lease terminates. Article 646 shall apply to the accessory purchased from the lessor, too. By the way, if an accessory becomes a part of the building concerned, the lessee can exercise his or her right to demand cost reimbursement from Article 626, a supplementary legal rule, but if not so, the lessee can exercise his or her right to demand the purchase of accessory from Article 646. Like this, in theory, we can draw a clear distinction between the lessee’s right to demand cost reimbursement of Article 626 and the lessee’s right to demand the purchase of accessory of Article 646. However, in practice, it is not easy to differentiate between the lessee’s right to demand cost reimbursement of Article 626 and the lessee’s right to demand the purchase of accessory of Article 646. For this reason, it seems to be desirable to unify both of them. Besides, the Japanese Housing Lease Act Article 5, a so-called mother law of the Korean Civil Code Article 646, has already been turned from a mandatory legal rule to a supplementary legal rule in 1992. In addition, there is not any legal rule like our Article 646 in western countries, including Germany. Considering these regards, I'd maintain that Article 646 should be turned from a mandatory legal rule to a supplementary legal rule.