건물의 임대차법제에 관한 소고 - 주택과 상가건물임대차특별법의 일부 규정을 민법전으로 편입 -

Abstract

The housing environment has brought the changes under the recent changes in population and low interest rate caused by the fertility and aging. According to the National Statistical office research, the population and housing survey in 2005 showed the reduction on the yearly rent increase on the monthly rent. But despite these dramatic changes, our lease regulation of the Civil Code remained and created the special law that has been dealt with Housing Lease Protection Act and the law for protection of commercial building tenants. It has been resulted the rapid doughnut phenomenon on the Civil law of the building lease regulation. The Parent Law, which exist in German and Korea, have the Special Laws on Lease besides the Lease Regulation of the general Civil Law, but Germany has accepted the Special Laws into the general Civil Code through the Act of Revision. While accepting the Special Law as a general Civil law, the Public Law elements are still remained in the Special Law, and only the judicial elements are accepted to the Civil Code. This effort is, for the Civil Law to be permanently and continuously practiced its basic principles as a general Civil Law, closed to the basic that the basic principles is provided in the Civil Code. Therefore, this paper investigated whether our Housing Lease Protection Act and a law for protection of commercial building tenants can be incorporated into the Civil Code based on the legislations of Germany. And, as for the provisions that have the unincorporated Public Law elements, even if it is remained as a the Special Law, It was investigated that the provisions which have the unincorporated Public Law elements are remained as the Special Law, not by separating a special law for renting on the house and commercial building like the existing law but keeping it as one of the Special Law like the Land Lease and the House Lease Law in Japan.