中國 典權制度의 현황과 입법상 과제

Abstract

The system of pawning right is the real property right system with the most distinctive Chinese local characteristics, which fully embodies the concept of integrity in the traditional culture of the Chinese nation and has harmonious value. The internal logic of pawning right is very complex and exquisite, but with the change of social environment, the system of pawning right is gradually declining. In Taiwan of China, which inherited the pawning right system completely, the utilization rate of pawning right continues to decline, and legislators completed a comprehensive revision of the pawning right system in Taiwan's civil code in 2010. On the basis of maintaining the traditional concept and core meaning of pawning right, in order to realize the modernization of pawning right system, Taiwan's Civil Code has revised the definition of pawning right, strengthened the usufruct nature of pawning right, rearranged the relationship between land and buildings to achieve the integration of pawning right disposal, amended the rules of risk burden, newly established the use method of redemption right when converting pawn, and improved the treatment of the problem of redemption of pawned property. However, from the current point of view, the effect is not ideal. Different from Taiwan, after the establishment of the People's Republic of China, the right of pawning was abolished from the explicit provisions of the laws of mainland China and returned to the customary law again. In the context of the principle of numerus clausus, in the legislative process of the Property Law in 2007, there has been a debate on whether the pawning right should be defined as a type of real right. Although the result is that pawning right has not entered the property law, but recently in the process of compiling the Civil Code of China, the controversy about whether to stipulate the system of pawning right has come on stage again. This article discusses the necessity of stipulating pawning right in Chinese Civil Code from the aspects of the inheritance of traditional legal culture of Chinese civil law, the interest and irreplaceability of pawning right system, the promotion of real estate system reform and the settlement of practical disputes. In addition, from the perspective of modern property law, this paper points out the logic dilemma of the existence of pawning right, and proposes to learn from the successful experience of Korean Cheonse-Right modernization, activate the pawning system, in order to highlight the localization and epochal nature of Chinese Civil Code.