耕者用田을 위한 農地賃貸借制度의 改善方案

다국어 초록 (Multilingual Abstract)

ABSTRACT
Improvement of Farmland Leasing System
f or L and to the Cultivators P rinciple
Lee, Chang Ho
Major in Real Estate
Graduate School of Real Estate Studies
HanYang Cyber University
The First Korean Constitution prohibited farmland leasing of any
kind, including sharecropping and leasing, under the Land to the
Tillers Principle. This principle is still succeeded by the Korean
Constitution and the Farmland Act today with slight differences in
degree or terminology, so farmland leasing is currently prohibited in
principle. Farmland ownership and leasing are prohibited, but in
reality, illegal farmland leasing cannot be stopped due to
non-farmers' ownership of farmland and speculative purchase of
farmland disguised as self-cultivation. According to the 2010 records
of the Statistics Korea, 47.9% of farmland is leased and more than
62.2% farm households are leasees. Also, 20% of sale of farmland
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violates the Farmland Act. Most of illegally acquired farmland is
leased despite that it is prohibited by the Farmland Act. In 2007,
for example, 173,497 people were exposed as unlawful beneficiaries
of rice subsidy, but only 13% of farmland in the Farmland Registers
was reportedly leased. After that, leasing farmers were seriously
confused because the non-farming owners, who were the unlawful
beneficiaries of rice subsidy, replaced written agreements with verbal
agreements to disguise as self-cultivators. This means that limited
farm ownership and prohibited farmland leasing hinder agricultural
productivity and reasonable use of farmland. This study was
conducted to identify the problems that interfere with the Land to
the Cultivators Principle to suggest possible improvement measures.
The conclusion of this study is that the Land to the Tillers
Principle, which is an unrealistic rule, is still adopted by the
Constitution and the farmland system although it has been half a
century since the establishment of the Constitution and hinders the
development of modern agricultural management. As the lifestyle and
the economic conditions have changed, the Land to the Tillers
Principle should also be changed. Now, the land ownership or leasing
system should be amended for those who own, cultivate, and/or use
farmland. The leasing system was amended and added to the
Farmland Act in 2012. The terms on leasing period were added to
set the minimum period to three years. Considering that agriculture
is a long-term project, requires high-priced agricultural machines,
and advanced countries set their minimum period at nine years, it
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would be reasonable to limit the period to no shorter than three
years and no longer than nine years and allow the rights to extend
agreement for up to nine years. For leasing rates, the regulations
have been abolished and the Civil Code (Sections 618 and 633) is
currently applied to the payment of lease, time of payment, and cap
of leasing rates. However, it would be more reasonable to stipulate
terms on leasing rates along with the rights to claim lease
increase/decrease in the Farmland Act. The best measure would be
to enact the special「Farmland Lease Protection Act」considering the
specialization of agriculture to protect organized and stable
agricultural management of leased farmers.
Some of the beneficial programs to protect and benefit farmers
include farmland banking system, farmland registers, agricultural
management entities, rice subsidy system, and exemption of transfer
tax for self-cultivators with eight years of history. Despite their
intention, however, it has been found that many farmers are actually
not benefiting from these systems. The reason why these systems
are not beneficial to leasing farmers is because non-farmers disguise
as self-cultivators and they cannot report themselves as farmers.
Non-farmers disguise as self-cultivators to have the transfer tax
imposed on self-cultivators exempted. Their expedient is to move
their address to a farm household to disguise as self-cultivators and
hide the fact of their illegal ownership of farmland to avoid farmland
disposition order and enforcement of penalties. They benefit from
various benefit programs during the period of ownership and they
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report themselves as self-cultivators by providing proof documents,
such as farmland registers, agricultural management entities, and rice
subsidy statement when they sell the property after eight years. In
result, they can save 0.2 billion KRW a year and a total of 0.3
billion KRW in taxes in five years. The problem is that the systems
created for farmers are available for non-farmers with the proof
documents they can provide as disguise farmers. The Constitution's
Land to the Tillers Principle should be replaced with Land to the
Cultivators Principle and farmland ownership and lease prohibition
system should be opened and liberated. The purpose of disguise
farmers is to have transfer tax exempted, so an essential solution is
needed. The key is to enact the 「Farmland Lease Protection Act」
and eliminate disguise farmers who report themselves as
self-cultivators.
...................................................................................................................
Keywords: Land to the Tillers Principle, Land to the Cultivators
Principle, Farmers, Self-cultivation, Farmland Lease

국문 초록 (Abstract)

<국문초록>
耕者用田을 위한 農地賃貸借制度의 改善方案
제헌「헌법」은 경자유전(耕者有田)의 원칙에 따라 농지임대차는 소작, 임
대차를 불문하고 아예 금지하였다. 현행「헌법」이나「농지법(農地法)」에서
도 정도나 용어의 차이는 있지만, 이 원칙은 그대로 유지되고 있어 농지임
대차를 금지하고 있다. 농지소유 제한과 임대차(賃貸借)를 원칙적으로 금지
하고 있지만, 현실은 비농업인의 농지소유와 자경(自耕)을 가장한 투기적 농
지거래로 말미암은 불법 농지임대차는 막지 못하고 있다. 2010년 통계청에
의하면 농지면적의 47.9%가 임차농지이고, 62.2%가 넘는 농가가 임차농이
다. 또한, 전체 농지의 20%에 달하는 매매가「농지법」을 위반하여 이루어
지고 있다. 불법으로 취득한 농지는 대부분「농지법」에서 금지하는 임대차
로 연결되고 있다. 한 예로 2007년 쌀 직불금 부당수령자로 적발된 인원이
173,497명이나 되었으나 이를 근거로 한 농지원부(農地原簿)상 임대차 면
적은 13%에 불과하였다. 그 후 쌀 직불금 부당수령자로 적발된 비농민 소
유자가 자경을 가장하고 은폐하기 위하여 임대차를 서면계약에서 구두계약
으로 하는 사태가 벌어져 임차 농업인들이 한때 큰 혼란에 빠지는 경험을
했었다. 농지소유 제한과 임대차 금지제도는 농업 생산성의 제고와 농지를
합리적으로 이용하는데 방해가 되는 요인이 되고 있다는 것을 알 수 있다.
이런 점들에 착안하여 본 연구는 경자용전(耕者用田)을 가로막는 문제점을
발견하여 개선방안을 제시하고자 하였다.
연구 결과, 제헌 이후 반세기가 지났는데도 현실에 맞지도 아니하는 경자
유전 원칙이 현재까지「헌법」과 농지제도에서 요지부동하게 활용되고 있
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어, 현대 농업경영에 걸림돌이 되고 있다. 글로벌 시대에 살고 있으면서 삶
의 방식도 변하고 경제여건도 달라졌으므로 경자유전의 원칙은 바뀌어야 한
다고 본다. 이제는 농지를 소유한 자뿐만 아니라 경작하거나 사용하는 자
위주로 농지소유나 임대차제도가 정비되어야 한다. 2012년 농지법 중 임대
차제도가 개정 및 신설되어 대폭 확충되었다. 그 중 임대차기간이 신설되어
최단기간이 3년 이상으로 규정되었다. 그러나 농업이 장기화(長期化)를 필
요로 하는 생태 상의 제반 문제와 고가의 농기계 구매자금 문제 등 선진국
에서도 최단기간을 9년으로 하고 있는 예를 보아 최단기간 3년 이상에서
최장기간 9년까지로 규정하고 9년을 넘지 아니하는 범위에서 계약갱신청구
권을 부여함이 타당하다고 본다. 임차료율은 규정 자체를 폐지하였으므로
임차료의 지급방법, 임차료의 지급시기, 임차료의 상한 등이 현재는「민
법」(법 제618조, 633조)에 따라 규율되고 있는데, 임차료율도 차임증액·감면
청구권과 함께「농지법」에 신설하는 것이 바람직하다고 본다. 농지임대차
제도의 최선책은 농업의 전문성을 고려하여 특별법으로「농지임대차보호
법」을 제정하여 임차 농업인이 계획적·안정적으로 농업경영을 할 수 있도
록 보호할 필요가 있다고 본다.
농업인을 보호하고 혜택을 주기 위한 제도들로서 농지은행제도, 농지원
부, 농업경영체, 쌀 소득보전직불금제, 8년 자경농 양도세감면혜택 등의 좋
은 제도들이 있다. 그러나 본 취지와는 달리 실제 많은 농업인이 수혜를 받
지 못하고 오히려 피해를 보고 있는 경우가 상당이 많이 있다는 것을 알게
되었다. 임차 농업인이 피해를 보는 이유는 비농업인이 자경을 가장(假裝)하
기 때문에 그 여파로 임차농업인이 행세를 할 수 없기 때문이다. 비농업인
이 자경을 가장하는 이유는 자경에 의한 양도세감면 혜택을 받기 위해서다.
편법은 비농업인 농지소유자가 위장(僞裝) 전입하여 재촌(在村) 및 자경을
가장하고, 불법 농지소유 은폐를 하여 농지처분명령과 이행강제금을 면하는
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것이다. 그 후 소유하는 동안 각종 혜택을 받고, 8년 후 매도할 때 농지원
부, 농업경영체, 쌀 직불금수령자 등의 증빙자료를 통하여 자경으로 인정을
받게 된다. 그렇게 되면 연간 2억 원, 5년간 합산은 3억 원의 양도세감면이
라는 혜택까지 보장받게 되므로 자경을 가장하게 되는 것이다. 문제는 실제
농업인을 위한 제도들이 역으로 비농업인에게 농업인으로 가장할 수 있는
자경농 증빙자료로 이용하기에 적합하다는 것이다. 따라서「헌법」상 경자
유전(耕者有田) 원칙을 경자용전(耕者用田) 원칙으로 하고, 농지소유 제한과
임대차 원칙적 금지 제도를 개방하여 자유화하여야 한다. 가장 자경의 은폐
목적이 양도세감면에 있으므로 근본적인 해결책이 필요하다.「농지임대차보
호법」을 제정하고, 자경을 가장하는 농업인을 근절하는 것이 급선무라고
본다.
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주제어 : 경자유전, 경자용전, 농업인, 자경, 농지임대차

목차 (Table of Contents)

• ◈ 목 차 ◈
• 국문요약 ·········································································································· 1
• 표 목 차 ·········································································································· 7
• 第1章 序 論 ·························································································· 8
• 第1節 硏究의 背景······················································································· 8
• 第2節 硏究目的과 內容············································································· 13
• 第2章 農地賃貸借 制度의 考察 ························································ 17
• 第1節 農地賃貸借 制度 ··········································································· 17
• 1. 농지제도의 기본 ············································································ 17
• 2. 농지임대차 제도 ·············································································· 27
• 3. 경자유전과 경자용전의 용어설정 ················································ 30
• 第2節 農地賃貸借 制度의 變遷過程······················································· 32
• 1. 농지개혁과정 ···················································································· 34
• 2. 농지임대차관리법 제정 ·································································· 44
• 3. 농지법 제정 ······················································································ 48
• 4. 2012년 농지법 개정내용 ······························································ 49
• 第3節 農地賃貸借制度의 基本 構造······················································· 60
• 1. 농지임대차 거래의 제한 ······························································ 60
• 2. 민법의 규정 ······················································································ 66
• 3. 민법과 농지법의 관계 ···································································· 67
• 第3章 農地賃貸借 制度의 問題點······················································ 72
• 第1節 農地賃貸借 現況 分析··································································· 72
• 1. 농지임대차 비율 ·············································································· 73
• 2. 농지임차료 분석 ················································································ 79
• 3. 임대차 계약기간 분석 ······································································ 86
• 第2節 現行制度 分析··················································································· 89
• 1. 농지임대차의 특별법적 보호 필요성 ············································ 89
• 2. 개정농지법의 문제점 ········································································ 93
• 3. 제3자에 관한 효력의 한계 ······························································ 97
• 第3節 農業人 權利保護 側面의 問題點················································· 104
• 1. 농지은행의 농지 임대수탁사업 ···················································· 104
• 2. 쌀 소득보전 직접지불금 청구권 ·················································· 109
• 3. 영농손실보상금 청구권 ·································································· 111
• 4. 선매권·농지원부·농업경영체 ························································· 113
• 第4章 耕者用田을 위한 賃貸借制度 改善方案 ·························