민법 제311조에 대한 검토 및 개정안

Abstract

The Korean Civil Act provides the Article 311 on extinguishment-claim of the chonsegwon. And then the chonsegwon is right to registered lease on deposit basis. In this paper, I studied many problems on this Article 311 comprehensively. And based on this study, I suggested right amendment proposals as follows. In the follows, The Article is the Korean Civil Act Article. 1. Study on the Title and etc. of Korean Civil Act Article 311 The Title and Clause 1 of Korean Civil Act Article 311 provide extinguishment-claim of chonsegwon. I consider this claim assiduously. And I think that this claim is not right, because this claim means declaration of will on the real rights. So the title and the clause 1 of Korean Civil Act Article 311 must be amended. 2. Study on Korean Civil Act Article 311 Clause 1 In this paper, firstly I studied rationale and nature. And I studied that a part of the subject matter of chonsegwon has been extinguished extinguishment-claim. I maintain my opinion that any cause attributable to the person having chonsegwon does not be need in the case of extinguishment-claim. When extinguishment-claim and registration of an alteration have been done, extinguish usable and profitable power of chonsegwon. 3. Study on Korean Civil Act Article 311 Clause 2 This Clause provides as follow. “In the case of preceding paragraph, that the settlor of chonsegwon can request the person having chonsegwon to restore the subject matter to its original condition or can demand compensation for loss”. In this paper, after pointing out problems of this Clause, I maintain to delete this Clause. Namely, it is right to delete this Clause. 4. The Relation of Korean Civil Act Article 311 Clause 1 and 2 This 2 clauses can be applied in redundant. 5. The Relation of Korean Civil Act Article 311 Clause 2, Article 315 and 750 I think that Korean Civil Act Article 311 the Clause 2, Article 315 and 750 are not the relation of general law and special law. Therefore the settlor of chonsegwon can demand compensation immediately by one of these three provisions at a time when there are any damages. Especially, Korean Civil Act Article 315 Clause is not 2 a provision that prohibits demanding compensation. 5. Amendment Proposal on the Article 311 Korean Civil Act Article 311 (Extinguishment of usable and profitable Power by the settlor of chonsegwon) In the case that a person having chonsegwon does not use or take profit from the subject matter of chonsegwon according to the terms applied to the use thereof or according to the character of the subject matter, the settlor of chonsegwon can extinguish usable and profitable power of chonsegwon by declaring his intention that extinguishes this power.