지하수에 대한 권리의 검토 - 민법상 용수권과 지하수법상 지하수 개발·이용권을 중심으로 -

Abstract

Water is an indispensable element for human survival. However, due to climate change and overuse of water, water shortages are appearing all over the world. Among these water resources, groundwater is increasing in value as the last bastion. In recent years, even the use of groundwater is facing a crisis due to indiscriminate development, drought caused by climate change, and pollution. Therefore, in order to effectively manage groundwater and resolve disputes, it is necessary to review the legal principles for groundwater. The legal nature of the right to groundwater will be an issue in relation to whether groundwater is subject to private ownership. In the event of a conflict between those who have rights to groundwater, the solution is also important. The legal nature of groundwater are reviewed by dividing them into different types of groundwater. First, groundwater used as a source(springwell) and water pump without a mechanical device is an object of property right(things) under Article 98 of the Civil Act. In other words, it satisfies the requirements of ① corporeal matter ② manageability ③ independence ④ impersonality. It also belongs to the upper and lower scopes of land ownership rights under Article 212 of the Civil Act. Therefore, such groundwater should be regarded as being included in land ownership. The second is groundwater as public water subject to Articles 235 and 236 of the Civil Act. This must meet the requirements of ① public ② springwell or water supply ③ right to use. Here, the springwell or water supply should be seen as referring to spring water, wells, and pumps commonly used by villagers from the past. The scope of groundwater subject to water rights is the same as that of groundwater within the scope of the first land ownership. However, the right to use public water under Articles 235 and 236 of the Civil Act is a form in which the legal principle of neighborhood relations is applied by adding the requirement that it is public. Legal character should be regarded as a right similar to easement or personal easement right in custom. However, these water rights cannot be equated with complete real rights. The easement as such a real right is governed by the water easement under Article 297 of the Civil Act. Finally, groundwater that does not fall under the above two categories should be regarded as a natural tribute as a public property. Under the Groundwater Act, the right to develop and use groundwater is granted. The right to develop and use groundwater is a patent for public property, and its legal nature is similar to that of easement, but it is difficult to recognize an exclusive right due to the nature of public property. If the right to such groundwater conflicts with a third party or other right holder, the solution becomes a problem. In the case of groundwater belonging to ownership, it will be possible to claim for damages based on tort and real rights claims based on ownership. Infringement of the right to groundwater corresponding to the water rights under Articles 235 and 236 of the Civil Act can be resolved with the relevant provisions. However, since this water right is limited to public use, it will be possible to exercise limited property rights or claim damages based on tort. The most problematic case is when conflicts arise between holders of rights to groundwater. If there is a person with the right to use water under the Civil Act, the relevant provisions of the Civil Act may be used to seek a solution. However, in the case of a conflict of rights between the holders of the right to develop and use groundwater, a solution must be sought. Since no legal regulations or precedents have been established yet, it is necessary to review the legal principles of conflict resolution in the US. It is thought that it is not appropriate to properly use the legal principle of reasonable use and the legal principle of correlative right. However, as this is a theoretical search, it is thought that a more in-depth discussion on this part is needed.