중국의 토지사용권 유형에 관한 연구－중국 물권법의 용익물권편 규정을 중심으로－

Abstract

In the Chinese legal system, land is in possession of the state and the group, and cannot be owned by the private person. In order to emphasize the nation’s ideology of socialism, the state-owned land had been used, in principle, free of charge for a long time. The land use system like this caused irrationality and low efficiency of the use of land, resulting in serious waste of land resources. Also, since the state allowed people to use land free of charge, earnings could not be obtained by utilizing land. This led to financial deficit and the state could not secure necessary fund. Facing such circumstances, the Chinese government reformed the land use system from the 1980s and abolished the land use free of charge system and adopted the land use for compensation system. And the related legal system was reformed so that the land use rights can be transacted. The core of this change is the land use right system. As the law of jus in rem became effective in 2007, the land use right system brought about new changes. As the law of jus in rem was enacted, the three types of the land use rights were established. With this being set as the research subject, this research examined the legal properties of the land use rights in the Chinese law of jus in rem and the contrast of theories related to choosing terms. Together with this, the problems related to the acquisition and the termination regarding each of the three types of the land use rights were discussed. By doing so, I attempted to clarify the current conditions of the diverse types of the Chinese land use rights. The Chinese law of jus in rem categorized the land use rights into three types. This agrees with the land nationalization system established as the basic policy of China and it can be said that is one of the characteristics of Chinese law of jus in rem. It is evaluated as the enactment of legislation in consideration of China’s unique land ownership relations that categorizing the existing land use rights rather than adopting the concept of superficies as the land use rights in the traditional law of jus in rem. It was a good idea to regulate by classifying the types of land into the rural land and the urban land in the course of legislation of the land use rights. But not being able to define the form of usufructuary right more concretely is pointed out as a problem. Besides, there are diverse problems such as confusion with the function of registration, resulting from the fact that the law of jus in rem was enacted quite recently. In order to solve these problems, this research suggested that the detailed rules related to the enforcement of the law of jus in rem should be promptly enacted.