侵害宠物的精神损害赔偿研究— 民法典第1183条第2款的理解与适用

Yin Tai Shun,Xu Lin 원광대학교 법학연구소 2022 圓光法學 Vol.38 No.4

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중국 물권법의 기본내용과 문제점, 향후과제

尹太順(Yin Tai-Shun),장석천 충북대학교 법학연구소 2008 法學硏究 Vol.19 No.1

The property law of People"s Republic of China, which has attracted worldwide attention, has been passed on March 1st, 2007 by means of seven deliberations. As a basic law in Chinese law system and an important civil law, the property law is a basic law of certifying property, using property and protecting property and an important law of adjusting the relationship between properties ,which not only concerns national basic economic system but also concerns common people"s concrete interest. Property Law is one of important bracket in the socialist legal system with Chinese characteristics, which has a clear attribution ,plays important roles of property effectiveness and in protecting property owner"s legitimate rights and interests of property rights. China"s Property Law consolidates and safeguards for-years fruits of reform and opening up, maintains the characteristics of socialism, at the same time, reflects the thinking of the market economy; confirms in the private ownership means of production while maintaining the socialist public ownership and applies the principle of equal protection to the different types of property. China"s property law includes the basic elements of ownership, usufruct property rights, and security interests. Under the ownership of the basic type , ownership can be classified in various ways, such as the state ownership, collective ownership, private ownership usufruct property rights includes the right to contractual operation of land, construction land use rights, the right to use the house foundation, easements; security interests includes mortgages, pledge right, lien ; in addition property law also stipulates possession. China"s Property Law enaction accordance with the actual situation in China, focuses on solving the problems of a lot of property relations in the real life, and confirms the equal protection principle of property therefore it plays a very important role and significance in social development and stability. However, in the implementation of property law there still exist many problems. China has entered the era of market economy, ownership can be classified by three types of ownership in property law which not only emphasizes the protection of public property, but also directly invoke the provisions of Public Law, it inevitably causes the suspect of violating the principle of equality and independence and sets up A certain obstacles to the future China"s private law system. In addition, there still exist some problems in the implementation process of property law, such as problems how to define the public interest and reasonable compensation; problems how to circulate agricultural land use rights, problems on protecting the proprietary rights of building, problems on improving real estate registration system, all these issues will be needed further theoretical research and legislative interpretation.

중국민법전의 제정과 민법학의 과제

윤태순(Yin, tai shun) 충북대학교 법학연구소 2015 法學硏究 Vol.26 No.1

With the development of China’s reform and opening, as well as the prosperity of socialist market economy. China’s civil law and civil legislation have been developed rapidly. The process of Chinese civil legislation can be divided into the preliminary stage of reform and opening and in the later of 1990s. Civil legislation of the two different times fully reflects the achievements which China’s reform and opening and socialist market economy have gained at different stages, its legislative proceeding also reflects the different position and attitude towards the reference and inheritance of foreign law, as well as the development and changes of different legislative stages and future trend. You can say that China has formed a basic system of civil law. Single law, such as contract law, property law, tort law, and other major civil legislation which are essential for the Civil Law have been completed, it means that the time is ripe for the constitute of the Civil Code. In October 2014, the Code of Civil Law once again became an important topic and reached an agreement at the annual meeting of the civil. It refers to the code of civil law should be included by the national legislative process as quickly as possible, at the same time, a number of important issues during the formulization of the Civil Code have been mentioned. The basic approach for the development of the Civil Code is the legislation of Civil General firstly, followed by the legislation of the personality rights, and then integrate all civil single law, forming an unified civil code in the end. Because past civil legislation and research, which eager to meet the needs of country’s reform and opening up and complete market economy‐related legislative tasks, there is no point in researching the elementary problems, such as the nature of civil, the basic system of civil law, civil law hermeneutic, etc. In addition, limited by the historical background and the limitations of legislative technology, it is hardly possible to avoid the duplicate, the conflict and the contradiction between the single law, and the application of law is difficult. Therefore, in order to formulate a civil code with scientific content and uniform system, we must change the idea about the study of the civil, in other words, we should change “the research of legal constitute” into “the research of legal interpretation “that based on civil law’s essential theory and the research of legal application.

《民法典》视域下的买卖型担保合同探究

尹太顺,(Yin Tai shun),韩,银,珠(Han Eun ju) 원광대학교 법학연구소 2020 圓光法學 Vol.36 No.4

随着经济形势与金融政策的改变,出现了“买卖型担保合同”这一新的形式。但直接规制这种新型担保方式的法律规定只有《民间借贷规定》第二十四条的规定,没有明确规定买卖型担保合同的性质与效力,学界与实务界至今还未能形成统一的意见。但社会实践中存在庞杂的买卖型担保合同的实务与纠纷,须由统一的规范进行规制。《民法典》的担保物权体系作出了重大调整,承认了非典型担保合同的效力,将流质契约排除在禁止性规范之外无疑为买卖型担保合同留下了解释空间。《民法典》颁布前,虽然有过关于买卖型担保合同的讨论,也有主张应将让与担保等非典型担保方式入典,但并未能实现。因此在《民法典》的新规则视域下重新研究买卖型担保合同,界定其在现有法律框架下的定位和效力无疑是有意义的。 要认定买卖型担保合同的性质,须从理性当事人的意思表示出发研究其合意的基础。从理性商事主体的角度而言,将买卖型担保合同认定为买卖合意存在诸多不合理之处,其合同的内容也不符合正常买卖合同的一些特征。认定买卖型担保合同的性质为清偿合意,尽管在解释论上有其合理之处,但清偿制度还未入典,也无法满足解决实际问题的需求。认定买卖型担保合同的合意基础为担保合意,不仅体现了当事人的内心真意,也可与当前 非典型担保物权体系的立法现状和司法实践联系在一起,认为是最为合理的解释路径。对于买卖型担保合同的效力,则需要从买卖合同和担保行为两个角度研究其债权效力与物权效力。在肯定合同效力的前提下,物权效力则需要对实践中的诸多情形作出区分,具备公示条件的买卖型担保合同应作为非典型担保物权对待,准用《民法典》担保物权优先受偿规则,而未具备公示条件的买卖型担保合同则不予承认其物权效力,仅承认债权效力。 As the economic situation and financial policies change, a new form of guarantee—— “Trading-based Guarantee Contract” has emerged. However, the only legal provision that directly regulate this new type of guarantee is only the Article 24 from the regulations on private lending, issued by Supreme People s Court, which does not clearly stipulate the nature and effectiveness of the Trading-based Guarantee Contract. The academic and practical circles are still discussing related issues, and they have not yet been formed unified opinion. However, in social practice, there are numerous and complicated disputes over the Trading-based Guarantee Contract, which must be regulated by a unified theoretical viewpoint. The Civil Code has made major adjustments to the security rights system, acknowledging the effectiveness of atypical security contracts, and excluding fluidity contracts from the prohibitive regulations, undoubtedly leaving room for interpretation of sales-type security contracts. Although there had been discussions on the Trading-based Guarantee Contract before the promulgation of the Civil Code, some commentators suggested that atypical guarantee methods such as assignment guarantees should be included in the Code, but it have not been realized. After the promulgation of the Civil Code, it is undoubtedly meaningful to re-study the Trading-based Guarantee Contract under the scope of the new rules of the Civil Code, and it is undoubtedly meaningful to determine its positioning and effectiveness under the existing legal framework. It is necessary to study consensus basis from the expression of the rational parties to determine the nature of the Trading-based Guarantee Contract. From the perspective of a rational commercial subject, it is deemed that there are many unreasonable points in the agreement of the trading consensus, and the content of the contract does not conform to the other characteristics of the normal sales contract. The theory of settlement consensus has its rationality in the interpretation, though the settlement system has not been included in the Civil Code, cannot meet the needs of solving practical problems. To determine the consensus basis of the type of contract as the guarantee consensus, which is the most reasonable interpretation, not only reflects the true intentions of the parties, but also can be linked to the current legislation of atypical security right system and judicial practice. To confirm the effectiveness of the Trading-based Guarantee Contract, it is necessary to analysis the effect of obligation and real right from the two perspectives of the sales contract and the guarantee behavior. Under the premise of affirming the validity of the contract, the validity of real right needs to distinguish between many situations in practice. The Trading-based Guarantee Contract with publicity conditions should be treated as atypical security right, and the priority of compensation could on quasi-application of the provisions of security right from the Civil Code. Trading-based Guarantee Contract that do not meet the requirements for publicity should not recognize the validity of real right, but only recognize the vadility of the obligation right.

中國夫婦財産關係法의 歷史的 變遷과 特色

윤태순(Tai Shun Yin) 한국가족법학회 2005 가족법연구 Vol.19 No.2

This dissertation concerns matrimonial property system in China. It can be said that the principle of matrimonial property system has been varied and developed through various views of the world and ideality in different times, legal-cultures and social systems. This intricate process of formation is reflected also on the matrimonial property law in China. The Chinese Communist Party was established in 1921 the matrimonial property law in China should see the era of new ideality, which was launched with the revolution of neo-democratism. In 50's China of socialism accepted the law of socialism from the Soviet Union. In addition the law of capitalism, which is common in any states that run market economy, started to be introduced as China converted the planned economy to the socialism-market economy in 80's. This means, the existing matrimonial property law in China has a multi-structural format in which various legal systems are mixed. The purpose of this dissertation is to investigate the basic principles of the matrimonial property law in China formed through such an intricate process, the legal-structural characteristics of the system and regulations in concrete way and what could be pointed out as something Chinese in aspect of the regulations itself and its application. Moreover, problems raised by the application of the property system are also here examined, and it is also one of the purpose of this dissertation that makes the characteristics of the matrimonial property law in China clear through investigating what is the pattern of legal thoughts peculiar to China. This dissertation concerns matrimonial property system in China. However, there is no single-civil code in China, but the general provisions of civil code, the law of contract and the law of marriage exists independently. Consequently, the investigation is mainly about the matrimonial property law provided in the general provisions of civil law, the law of marriage - revised recently(2001) - and the other laws relating to the matter. It is tries to take a position to the Chinese matrimonial property law in coordinates which consist of the vertical axis equivalent to the history of Chinese and the horizontal axis equivalent to the comparative law. It is mainly based on laws from the ancient times to now in China, judicial precedents, dissertation of Chinese jurisprudence. The paper examines the existing provisions about that and the actual running of those provisions, concerning the ownership of the property, the property relations between married couple during marriage and the effect of divorce on the matrimonial property. This process shall explain the structural characteristics of Chinese matrimonial property law and the existence of its application. Therefore, this dissertation focuses on interpreting the law and investigating the various problems being discussed at the moment theoretically. Finally, It is suggests a proper reform measures of the existing matrimonial property law by in China based on those investigations above.

中國婚姻法中意思自治與國家干預之考察

尹太顺,(Tai-shun YIN) 한국가족법학회 2011 가족법연구 Vol.25 No.1

论中国《民法总则》规定之意思表示

尹太顺,(윤태순,Yin Tai Shun),姜艺,颖,(강예영,Jiang yi ying) 원광대학교 법학연구소 2017 圓光法學 Vol.33 No.4

General Provision of the Civil Law of the People Republic of China passed in the Fifth Session of the Twelfth National People s Congress, on March 15th, 2017, and runs on October 1st, 2017. China s civil law system has not been able to establish a set completely since the General Provision of the Civil Law passed. General Provision of the Civil Law opened the first page of the Civil Code, and laid a solid foundation for the compilation of our Civil Code. According to the planning of national legislation, China s Civil Code will come out in 2020. The important conclusion of the General Provision of the Civil Law is setting the juridical acts as a chapter. In this chapter, declaration of will sets as a section. It signifies that juridical is the main legislative line, and declaration of will is at the core position. It also abandoned legislation for legitimacy as the core of juridical acts. Comparing General Provisions of Civil Law with juridical acts of General Principle of the Civil Law of the People’s Republic of China and Contract Law of the People s Republic of China, makes very important breakthrough on China s civil law system, and this law system needs to be . This article mainly discusses the main content of the clause of Declaration ofWill in General Provisions of Civil Law, points out the legislative defects and propose the solutions, compares with the relevant clauses of Civil Law in Taiwan.