소작제 금지의 원칙

Abstract

Rental, which is a modern system, has been introduced, but there wasn't any discussion about what tenant farming is, which took a role as rental in the feudal age. In Japan, tenant farming is defined as a concept that includes rental and loan of use. Feudal tenant farming is the surplus working for the landowner through non-economic compulsion to tenant farmer. It means that the landowner manages tenant farmer's labor, and also the production so that the landowner collects high farm rent. It has similar points with the employment in current civil law, but it is distinguished from it because feudal tenant farming includes the concept of labor exploitation. Also, it is distinguished from rental due to the point of dominating the labor. Thus, feudal tenant farming has characteristics of 1) the landowner's force to the tenant farmer to do surplus labor, 2) the landowner's purpose of cultivation profits, 3) a high rate of farm rent. On the other hand, the semi-feudal tenant farming has characteristics of 2) and 3). It means that even though compulsory labor practice (labor exploitation) is gone, there is still a indirect labor exploitation economically. We can say that the semi-feudal tenant farming and a high-rate rental contract in the rental in modern days coincides. It means that in the farmland lease, the high-rate of rental contract can be told as the semi-feudal tenant farming on the point that it has a characteristics of indirect labor exploitation. Therefore, unless the principle of prohibiting tenant farming is discarded, we need to set a range of the level of highness of the rental contract and decide certain point of the rate would be considered as the semi-feudal tenant farming. In Constitution, tenant farming is interpreted as absolute prohibition, the system that goes against it would be invalid. Therefore, we need to define the contents of the farmland lease, differently from the rental regulation in civil law. In this case, I suggest legalizing the allowance of 5% per production output in the Agricultural Land Act as a maximum, and considering collecting more than 5% of the rental as a tenant farming. Scholars of constitutions and non-farmers who owns farmland suggests that the prohibition of the tenant farming on the latter part of the Constitution 제121조 제1항 should be discarded. Argument of those who agree to discard the regulation is based on the feudal meaning of tenant farming which is already gone, and does not understand or does not even consider the distinct characteristics of the smart-farm farming based on the fourth industrial revolution. After the liberation the tenant farming was strictly banned by Farmland Reform Act, and the semi-feudal tenant farming has revived and was included to 제3공화국 헌법 제113조; therefore their argument does not understand the meaning of the tenant farming and the reality of agriculture, and is based on the wrong situation. In smartfarm agriculture, which is the new and advanced form of the agriculture, collecting a high rate of farm rent is expected. Smartfarm agriculture, a future agriculture system, combines the greenhouse and the fourth industry so the mass production per floors is available; also, by the automatic controlling technique, 12-crops for the vegetable is available, so if people collect 10% of the annual production as farm rent, it becomes a high rate of the farm rent that reaches 120% of the single crop. It will be an important factor that would raise the price of the farmland and destroy a principle of farmland ownership. By maintaining the principle of prohibiting tenant farming, it will be the evidence for regulating the rental in farmland lease. In this case, we need to newly establish the rental regulation in the Agricultural Land Act. Also, considering that Switzerland is setting the maximum limit of the rent as 3.5% of the value of land profit, I suggest to establish a new regulation that “the annual rent in the farm rental should not exceed 5% of the annual production in that year.”