농업생산성의 제고와 농지의 합리적 이용을 위한농지임대차법제의 개선방안

Abstract

A farmland lease is a contract in which the legal object is farmland. This is in contrast to the Housing Lease Protection Act and the Commercial Building Lease Act, in which the legal objects are a private house and a commercial building respectively. The law pertaining to the agricultural land realizes the land to the tillers principle of the Korean Constitution; however, at the same time, a lease contract is predicated upon the Korean Civil Code. Specifically, the Farmland Act stipulates that no farmland, except for the cases stated in the law, shall be leased or lent gratuitously. Despite such policy, many people are facing huge difficulties in finding leaseholders, resulting in an excess supply of idle agrarian land. Also, the agricultural population is considerably declining, which is a double blow to the problem. This reality only highlights the question of whether it is necessary to maintain the land to the tillers principle. If so, a thorough discussion on how to establish appropriate legal interpretations that best reflect the current condition is essential. In light of this, this research suggests legal interpretations that are in accordance with the constitution and measures to improve agricultural productivity and efficiency from the standpoint of the constitutional principle. First, an efficient and effective usage of the farmland lease policy without undermining the constitutional principle is needed in order to bring about structural reform to a diversified and complex agricultural sector. Secondly, revising the Farmland Act is required to enhance autonomy in terms of farmland rental contracts and to protect a lessee. Especially, the law should prescribe penalties for violations of a written contract and extend the duration of a farmland lease contract to at least 5 or 10 years. With respect to the transfer of farmland, legal measures that give priority to a leaseholder should be considered. Moreover, since solely relying on the article regarding 3 months of implicit renewal is insufficient to protect a lessee, it is essential to enact regulations that guarantee a long term contract and set the maximum limit for rents. Also, a lessee should be provided with the right to terminate a lease contract in case of alienating the property to a transferee. This would safeguard the lessee from adverse effects of succession to legal status of a lessor. Thirdly, relevant farm workers should be able to claim the right of preemption for farmland entrusted to a farmland bank. Fourth, it is needful to offer commensurate incentives for lessors through restructuring farmland taxation. These benefits can be provided in the form of tax reduction such as remitting acquisition tax, property tax, capital gains tax and etc. Particularly, in case of a long term rental arrangement for 8 years or more, 70% of special deduction for long-term holding, a rate that is also applied to general house lease, should be accounted when calculating capital gains tax. Also, it may be significant to eliminate non-business purpose land classification so that the extra tax rate(10%) is not added to the standard tax rate(6%~42%). Lastly, additional tax deduction should be offered to a long term leaseholder who executes his/her right of preemption. [Key words：Farmland, Farmland Lease, Land to the Tillers, Farmland Bank, Farmland Preemption Right, Capital Gains Tax, Special Deduction for Long-Term Holding, Non-Business Purpose Farmland]