중국 물권법상 용익물권에 관한 소고 = A Study of Real Estate Usufruct in Chinese Property Law

다국어 초록 (Multilingual Abstract)

Based on the socialistic land ownership, such as the socialistic joint ownership in the land system, China would recognize the land as the national ownership and collective ownership only and the right of private property for the land will not be permitted. However, the using right in accordance with the land using right system has even the restriction of the using period; but actually, it comes nearby to acknowledgement for the land ownership to the private to be possible to assignment, lease and mortgage establishment of the land using right. However, even though the land ownership right will be recognized to the private, it is also far distance from the right of private property in the capitalism countries. Since the nation is an owner of the land in China and the nation puts the severe management and control to the right of the land use, it has the equivalent differences from the private property system or the right of private property.
With this background and purpose, the present thesis is composed as follows, focused on Chinese Property Law and the right of using of land. China has a unique management system for land usufruct. It originates from nationalization of land in order to maintain socialistic public ownership of land. Land in metropolis belongs to the state, and land in agricultural district belongs to a community. In other words, ownership is not given to any individual; only usufructuary right is permitted. As a result, land usufruct in China must be comprehended with an exclusive conceptual interpretation.
To be more specific, land usufruct is a separate and independent concept from land ownership. The Chinese Property Act Law of Property issued 2007. 10, identifies agricultural land usufruct(土地承包經營權), state owned land usufruct(建設用地使用權), and community owned usufruct(宅基地使用權) that are similar to superficies, and servitude. The distinction is made based on the different form of ownership of land-state ownership, community ownership, agricultural district ownership, etc. Especially, the recent induction of usufruct, which had been banned for long time in China, needs to be examined carefully. However,
the contents regarding land usufruct in the first draft are extremely brief and inaccurate and expected to have many controversial issues on interpretation.
Therefore, this study focuses on the real estate usufruct in Chinese Property Law, the changes of the agricultural system and the presentation of real estate usufruct in Chinese Property Law and submits a new data on the problem of the real estate usufruct. Ultimately, this study focuses on the problem to be related law of the right of real estate usufruct based on the analyzing framework of law economics and reforms a system of the right of using of land in China.

다국어 초록 (Multilingual Abstract)

Based on the socialistic land ownership, such as the socialistic joint ownership in the land system, China would recognize the land as the national ownership and collective ownership only and the right of private property for the land will not be permitted. However, the using right in accordance with the land using right system has even the restriction of the using period; but actually, it comes nearby to acknowledgement for the land ownership to the private to be possible to assignment, lease and mortgage establishment of the land using right. However, even though the land ownership right will be recognized to the private, it is also far distance from the right of private property in the capitalism countries. Since the nation is an owner of the land in China and the nation puts the severe management and control to the right of the land use, it has the equivalent differences from the private property system or the right of private property.
With this background and purpose, the present thesis is composed as follows, focused on Chinese Property Law and the right of using of land. China has a unique management system for land usufruct. It originates from nationalization of land in order to maintain socialistic public ownership of land. Land in metropolis belongs to the state, and land in agricultural district belongs to a community. In other words, ownership is not given to any individual; only usufructuary right is permitted. As a result, land usufruct in China must be comprehended with an exclusive conceptual interpretation.
To be more specific, land usufruct is a separate and independent concept from land ownership. The Chinese Property Act Law of Property issued 2007. 10, identifies agricultural land usufruct(土地承包經營權), state owned land usufruct(建設用地使用權), and community owned usufruct(宅基地使用權) that are similar to superficies, and servitude. The distinction is made based on the different form of ownership of land-state ownership, community ownership, agricultural district ownership, etc. Especially, the recent induction of usufruct, which had been banned for long time in China, needs to be examined carefully. However,
the contents regarding land usufruct in the first draft are extremely brief and inaccurate and expected to have many controversial issues on interpretation.
Therefore, this study focuses on the real estate usufruct in Chinese Property Law, the changes of the agricultural system and the presentation of real estate usufruct in Chinese Property Law and submits a new data on the problem of the real estate usufruct. Ultimately, this study focuses on the problem to be related law of the right of real estate usufruct based on the analyzing framework of law economics and reforms a system of the right of using of land in China.

참고문헌 (Reference)

1 박인성, "중국의 토지사용제도 - 절강대학 중·한 토지정책 연구토론회" 국토연구원 2007

2 김상용, "중국의 토지사용권" (8) : 2007

3 김용길, "중국의 물권법 제정동향에 관한 연구" 비교사법연구소 18 (18): 2006

4 권용옥, "중국의 物權法 制定과 그 사회적 영향" 중국연구소 40 : 2007

5 조동제, "중국외국인투자기업 경영법률과 실무" 한국재정경제연구소 2007

6 김상찬, "중국물권법의 성격과 특색에 관한 연구" 한국토지법학회 23 (23): 29-60, 2007

7 이상태, "중국물권법의 내용 및 우리 법과의 비교" 한국비교사법학회 14 (14): 705-746, 2007

8 박종근, "중국농촌집단토지의 소유 및 사용에 관한 연구" 한남대학교 2005

9 조동제, "중국 사회주의시장경제하의 물권적 특색" 39 : 2007

10 문옥향, "중국 물권법상 용익물권에 관한 고찰" 충북대학교 법학연구소 18 (18): 2007

11 이상욱, "중국 물권법(초안) 상의 토지사용권" 한국토지법학회 (22) : 173-202, 2006

12 이상태, "중국 물권법" 건국대학교출판부 2008

13 이양호, "중국 농촌토지제도의 변혁과 농민, 1978~1997" 한국정치학회 32 (32): 1998

14 백승기, "정책논단 : 중국의 도시토지사용권 정책에 관한 연구" 한국행정학회 28 (28): 1994

15 김증한, "물권법, 제9판" 박영사 1998

16 곽윤직, "물권법, 제7판" 박영사 2005

17 이은영, "물권법, 제4판" 박영사 2006

18 이영준, "물권법, 전정판" 박영사 2001

19 김상용, "물권법, 전정판" 법문사 1999

20 김준호, "물권법" 법문사 2007

21 楊立新, "物權法" 中國人民大學出版社 2004

22 김용길, "中國의 不動産登記制度" 한국토지법학회 23 (23): 97-124, 2007

23 孫憲忠, "中國物權法制定に關する著干の問題(1)" 有斐閣 10 (10): 2004

24 최경진, "中國 (新)物權法 小考" 법학연구소 (27) : 339-397, 2007

25 王利明, "中国物权法草案建议稿及说明" 中国法制出版社 2001

26 "http://npc.people.com.cn/GB/14957/3530629.html"