러시아연방 민법상 토지소유권의 특색과 이해

Abstract

The specific feature of land ownership in Russia appears in legal personality at first. While Korean Civil Law only concedes legal personality to natural persons and juridical persons, Russia even concedes legal personality to the federal state itself under their Civil Law. But, as Russia includes federal state or municipalities in legal personality under the private law, it creates vagueness in distinction between the public law and the private law. They would not suggest applying public law when federal state or municipalities own and private law when individual or corporation owns, but treating them both the same. Although the property law is seemingly part of the private law, it would be better to understand legally allowing private ownership in the area of public law because area ofpublic law overwhelms in terms of the ownership at least. But, the fact that can be comprehended in that exception to the Subject of Rights is recognized, would be the regulation which can be applied to at least other than Real Estate Rights by leaving legal provision of recognizing various subject of Right and treating them all same in Russia. i.e. especially in land ownership of the Real Estate Rights; this is simply declarative, principles-based regulation that cannot function practically. As described above, restricting state land ownership with the law when more than 90% of the landis still state-owned would have made much difficult for individual to acquire state land ownership institutionally and legally, though land ownership to individual is recognized in principle under the Constitution law. This is not easy to compare Russian law with Korean law in terms of the legal system, but Russian land law as public law has many similarities to the Korean State Properties Act in legislating protection of lands and management of the land disposals. At this point of view, state-owned lands are believed to be absorbed by the subject of ownerships of property rights or vice versa. And the possibility of the latter is more likely than the former. Eventually, it is more accurate to perceive that the land law discipline to the land rather than by civil law. The fact that land law, not civil law, restricts most provision of land supports the idea. According to the review so far, Russian Federation decides not to abolish its own system that has been utilized till recent,but tries to develop and accede through continuous research. We still can find some legal system rooted in Tsarists and Soviet law in Russian Code of Laws. Despite the fact that many difficult points were found to understand under the perspective of a scholar of the civil law,recognition of legal personality to the federal state can be regarded as their unique feature in persistence of expression or self-esteem about their legal culture. Then, an expectation that Russia would graduallyreform its system based on capitalist ideology of ownership in Western Europe could be ended merely as fantasy. Thus, a true concept of ownership could hardly be settled in Russia otherwise Russia excludes state land ownership in civil law. It is merely my (author’s) perception to think of why the reform process is slow and boring in Russia, while it may not be the case for them. It seems they are approaching very cautiously to the privatization of land, since they would already be aware of the problem about a significant disparity between the rich and the poor. What questioned me after doing my research on land ownership of Russia was, that "why does Russia with such vast territory still hold on to the past state land ownerships system that allows government to own most of the land in the country even after the successful succession to the current democratic government system from the past imperial socialistic government system?". One possible assumption can be drawn from the related documents, to prevent reckless speculation and to raise food. I believe there are other purposes behind it and they can be compressed into two assumptions I came up with. First, new Russia after a long period of imperialism and socialism could not just handle the abrupt inflow of materialism. So they had to stay still with the socialistic characteristics. Most of the land in socialist states and welfare states like northern European countries are owned by federal government, provincial government and the public (ownership). Governments lease out or distribute the land freely when needs for lands are sought from people. Socialist states tend to rather have the land owned by government or publicthan individuals. It purposes to prevent inequality of land ownership from unfair distribution and reckless speculation. Or it could be the past socialistic idea of fair and equal redistribution of wealth and profit from development on the land that Russia is pursuing. Second, since the service industry of Russia has not developed enough as service industries of western European countries have, land sorted as the most important economic good of Russia. Human live on the land and land is the source of all human life. Countries with highly developed service industry have real estate market and speculation inactive, while lesser developed countries in service industry would have strong tendency in speculation about land and real estate property. It is because the investment will be heavily focused on the land. This absorbs investments possibly could be invested on the service industry instead. Russia with the service industry in stagnant pacehad to take control over the land ownership and be cautious about skewed economic development by the abrupt reckless speculation. Most of the problem in the speculation of the land suffered in Korea has been caused by the land, and it is not a light issue to disregard,since there are plenty of people who accumulated their wealth by real estate and speculation. This Russian case of land ownership above warns us to approach the North Korean land problem cautiously when Korea confronts unification of south and north. It seems there will be a great need of considerable action in a way to approach privatizing North Korean land after the unification like Russia. Because North Korea would highly be deteriorated into land speculative market as long as South Korean capitals flows into the North at once. At this point, this paper hopefully will be the basis to find a new initiative in what way to approach land system of North Korea as of preparationto unification of south and north sometime in the future.