統一 後 北韓 土地所有權에 관한 硏究 = (A) Study on the Rights of Landownership in the North Korea after the Unification

다국어 초록 (Multilingual Abstract)

The purpose of the above thesis is to find what the ownership of the land in forth Korea should be like after the unification of the Korean peninsula. In order to reach the aim of the study, I started from the fact that the systems and societies of the two sides of Korea are fundamentally different from each other. So It is essential to begin with examining the concept of land ownership. The legal definition of land ownership is not a fixed, unchangeable one. It has taken a form reflecting given society and ideology of an era. In short, it is a historical concept.
For example, the land ownership of Rome was a full right. The owner of land was entitled to enjoy every function derived from the ownership. He had an absolute dominion. On the contrary, the ownership of land in German law was not a full right. There was little difference between the ownership and the use right or security right. In German society it was more important to serve to the society than to enjoy an individual interest.
To understand the principle of land own system in North Korea, it is recommended advisable to examine the history of social and ideological development there. This is supposedly not to the subject of this study. Today, the land system of North Korea is characterized with the stern limitation of private ownership even compared with other communist nations. According to the civil code of North Korea, codified in 1977, ownership is a right of the owner to possess, use, or dispense a thing. Ownership is categorized in three types : ownership of the Nation, that of collective, and that of individual person.
Ownership in East Germany used to be categorized in ownership of the society which again classified in ownership of the state(Staatseigentum) and that of the collective(Kollektiveigentum) and private ownership(Privateigentum). According to the unification treaty of two Germanies(Vereinigungsvertrag) in 1990, the communistic ownerships were supposed to be melted into a capitalistic land ownership system. In this process there was a series of vehement discussions over privatization and its social and economic effects on German society. The German people took the conclusion expected to harmonize with the principles and system of German civil law. Principally, the land in East Germany (DDR) should be returned to the original owner(Restitutionsprinzip). For the cases in which the land could not or must not be returned to the owner, the so called exceptions rule was applied.
Through the privatization of land which was taken by the military government of the USSR the owners of land could restitute their right and interests. On the standpoint of modern property legal system which also 'the Unification-Korean civil law' follows fully, logically, and naturally. Privatization of land, however, made the German society turbulent and brought forth terrible conflict between the people of west and those of east. Many families of DDR had to give up their basis to live and many factories were threatened with losing their working lots. Furthermore, capitalists were little interested in investing in the industries of the east, because real estate in East Germany proved difficult to be hard to be applied as security. In some cases it turned out to be unfair that the land was returned to the person insisting that he is the original owner of the land. So, the spectrum of the rule of exception, for example compensation, became wider than foreseen at first stage of privatization.
In this thesis, I examined the possibility of applying the principle of German privatization to the land of North Korea after unification. A dozen opinions pertaining to the North Korean land problem are filed. An author supports the original owner. This opinion departs from the fact that the land of the North was taken by illegal violence. Like a thing taken by a robber, the land ownership should be returned after unification. Another author represents the original owner of the land can be only through a special codification for privatization. This opinion fails however to explain why the original owner should no longer be the owner of the land. Some authors represent tile opinion that the land must not be restituted, but only be compensated. These authors indicate the point that though it is not impossible to prove the title is genuine, but it is very difficult. Some authors assert that we can acquire enough funds for the compensation for the original owner by issuing bonds representing interest on the land. The characteristic of the bonds, however, is not defined accurately. As a precedent researcher, I can define this sort of bonds as assets backed securities, what already enrolled in stock market in Korea. These bonds are to characterize in securitization or mobilization of 'sleeping security interest' of real estate. The conclusion of this thesis is that the land of North Korea is supposed to be in principle restituted and those exceptionally not be restituted is to be compensated. Funds for the compensation can be acquired through land bonds emitted on the security Interest of the land not returned to the original owner.
In case restitution of the land is not possible, it can be considered to take ownership of the land back to the nation as an exceptional and reasonable resolution.

목차 (Table of Contents)

• 목차 = ⅰ
• ABSTRACT = ⅵ
• 제1장 序論 = 1
• 제1절 硏究의 目的 = 1
• 제2절 硏究의 範圍와 方法 = 5
• 제2장 社會主義의 土地所有制度 = 9
• 제1절 社會主義의 土地制度理念 = 9
• Ⅰ. 形成背景 = 9
• Ⅱ. Marx의 社會主義的 土地公有論 = 12
• Ⅲ. 社會主義 國家의 土地所有制度 = 16
• 1. 中國 = 16
• 2. 舊蘇聯 = 21
• 3. 폴란드 = 23
• 4. 헝가리 = 25
• 5. 체코 = 27
• 6. 기타 동유럽국가 = 28
• 7. 檢討 = 29
• 제2절 北韓의 社會主義的 土地所有制度 = 30
• Ⅰ. 沿革 = 30
• 1. 政治鬪爭의 일환으로서 土地改革 = 30
• 2. 土地改革의 基本方針과 土地改革法令 = 33
• 3. 韓國戰爭 후의 土地改革法 = 37
• Ⅱ. 土地所有體制의 內容 = 40
• 1. 所有權의 定義 = 40
• 2. 國家所有權 = 43
• 3. 社會協同團體所有權 = 45
• 4. 個人所有權 = 47
• 5. 南北韓의 所有權法의 差異點 = 47
• Ⅲ. 最近의 土地所有制度의 變化 = 49
• 1. 土地의 賃貸制度 = 49
• 2. 農地의 耕作權 私有化 方案 = 54
• 제3장 東獨의 土地所有制度의 變遷過程 = 55
• 제1절 東獨의 土地所有體制 = 55
• Ⅰ. 舊蘇聯占領下의 土地改革 = 55
• Ⅱ. 東獨政權 樹立 後의 土地所有體制 = 58
• 제2절 統一後 東獨 土地所有權의 處理內容 = 61
• Ⅰ. 獨逸 統一의 過程과 所有灌體制 整備 = 61
• Ⅱ. 土地所有權의 處理 = 65
• 1. 原狀回復의 原則 = 65
• 2. 補充的인 補償 = 67
• 3. 處理現況 = 68
• 제3절 東獨과 北韓土地制度의 比較 = 69
• Ⅰ. 類似點 = 69
• Ⅱ. 相異點 = 72
• Ⅲ. 檢討 = 76
• 제4절 獨逸의 私有化政策이 주는 問題點과 示唆點 = 77
• Ⅰ. 東獨土地 私有化 政策의 問題點 = 77
• Ⅱ. 私有化政策이 주는 示唆點 = 80
• 제4장 統一後 北韓 土地所有權 處理方案 = 81
• 제1절 土地所有權處理方案에 관한 論議 = 81
• Ⅰ. 原狀回復에 의한 方案 = 81
• 1. 原則的인 原狀回復에 의한 方案 = 81
• 2. 制限的인 返還에 의한 方案 = 82
• Ⅱ. 補償에 의한 方案 = 85
• 1. 原則的 補償, 例外的인 返還에 의한 方案 = 86
• 2. 特別補償請求權에 의한 方案 = 86
• 3. 全的인 補償에만 의한 方案 = 87
• 4. 土地證券化에 의한 方案 = 90
• Ⅲ. 返還·補償 모두를 認定하지 않는 方案 = 95
• 제2절 土地所有權의 合理的 處理方案 = 97
• Ⅰ. 原則 = 97
• 1. 原所有者에 대한 返還 = 99
• 2. 返還의 問題點 = 106
• Ⅱ. 例外 = 111
• 1. 再國有化 方案 = 111
• 2. 代償請求權의 法理 = 113
• 3. 土地證券의 發行 = 113
• 제5장 結論 = 115
• 參考文獻 = 119