민법상 공유하천용수권에 관한 약간의 고찰

Abstract

The right of using public rivers is the right for persons engaged in farming and industries on the banks of public rivers to be able to draw water from the public river and the right to install structures for such use. The right of using public rivers is a customary right that has been acknowledged for a long time and the right to use public rivers was legislated in the Civil Act as it was accept in court cases of the High Court of Joseon. The legal character of the right to using public rivers is servitude (to be more exact, statutory servitude). The conditions for establishing such right of using public rivers and its effectiveness have become significantly concretized through court cases over the time. It cannot be said to be a dead system that lacks practicality and has played a big role for issues on the use and distribution of water that is essential for running farms mainly focusing on rice farming. However, through the farm production infrastructure rearrangement project conducted through the Rearrangement of Agricultural and Fishing Villages Act, 81.3% of all rice paddies in Korea have become irrigated rice paddies that can withstand droughts. Furthermore, due to the decreased in farmland with the transition of farmland to other purposes and because of development of underground water, the right of using public rivers has been losing meaning and is a right that is becoming extinct. However, as water management recently became unified under the Ministry of Environment, it aim at integrating the right of using public rivers under the Civil Act and the permitted water rights of the River Act, dam usage rights, etc. in order to place it under a single permitted water rights of the Public Law. Furthermore, it intends to collect water usage fees in the long-term. Accordingly, this paper reviewed in detail the history of the right of using public rivers in the Civil Act, its legal characteristics, and on the contents and effects of the right of using public rivers. In addition, the general issues and constitutional issues that would occur by abolishing the right of using public rivers under the Civil Act and integrating it under the permitted water rights of the River Act were reviewed. In order to abolish the right of using public rivers, it would require special care unless turning our society into a social economic system that does not require such rights.