조선시대의 陳田 開墾과 土地所有權

Abstract

In Cho-sun Period the government would like to issue a document(Ip-An) to the farmers who wanted to cultivate the wildland, but only to find that most of them did without getting the document. Both the royal family and the nobilities, however,did not cultivate the wildland by themselves even with the document. Furthermore,they took the cultivating lands from the small farmers under the pretext of the latter's not having the document, and even collected rents regarding themselves the justified owner of the lands. For this reason, the unending disputes about the ownership of the cultivating lands ensued. Therefore in 1634 the government issued the 『land surveying regulation』 (『量田事目』) which stipulated that the cultivator owns the non-proprietor wildland. However,this could not have a legal force, since it rather was a provision not a rule concerning the application of the law. Thus, the unlawful seizure of the lands and collecting rents on the part of the royal family and the nobilities continued. A drastic countermeasure against it was only to legislate the provision. The Supplement to the Manual for Legal Suit(『決訟類聚補』) issued in 1709 made it clear that the cultivator owns the lands both being discarded for a long time and not being cultivated with the document issued. This, modified many times through the royal instructions, had a final form in “the ownership of all the idling and wild lands belongs to the cultivator” in the 『Supplement to the Great Canon』(『續大典』)issued in 1746. This stands for the evolution of Cultivation Right to Land-Ownership in the basic Canon of Cho-sun Dynasty. In principle, it can be said that the ownership was originated from cultivation, and the Land-Ownership in the pre-modern society presupposed Cultivation-Right.