통일 민법에 있어서 북한 물권법 총칙 규정의 수용 및 그 한계

Abstract

This paper examines the elements and limitations of the general provisions of real rights law in the North Korean Civil Law that can be accepted in the Unified Civil Law, and suggests transitional provisions that should be included in the Unified Civil Law based on that. The unified civil law should be based on the liberal democratic basic order and on private property rights and private autonomy as its highest principles. Therefore, the general provisions of the property law of our civil law should become the basis of the unified civil law, and transitional measures should be stipulated accordingly. Among the general provisions of real rights law in the North Korean Civil Law, the principle of socialist possession of the means of production, the principle of collectivism, and the provision excluding ‘profits’ as the contents of ownership are elements that deny the private property system and private autonomy. Therefore, they should be excluded from the unified civil Law. There should be transitional provisions to ensure that the provisions on the principle of legality of real rights, transfer and registration of real estate rights, transfer and delivery of movable property rights, etc., which are not found in North Korea’s civil law but are stipulated in our civil law, are applied to North Korea after unification. The North Korean civil law recognizes a real right to claim, and the North Korean civil law theory recognizes merger as a cause of extinction of real rights, so the civil laws in South and North Korea do not conflict with each other with regard to the above content. Therefore, the unified civil law should include transitional provisions to extend the application of our civil law provisions on a real right to claim and merger to the North Korean region after unification.