中國物權法의 制定過程에서의 物權法과 憲法의 葛藤과 調和 (Law of China Law of the Constitution in the Drafting Process of the Conflict and Harmony)

서지정보

· 발행기관 : 경희대학교 법학연구소
· 수록지 정보 : 경희법학 / 45권 / 3호 / 441 ~ 475페이지
· 저자명 : 소재선

초록

In China, generally the ‘Property Rights’ are defined as rights that can be dominated directly, and enforceable against all other people. Although China has considered the ‘Property Rights’ as an indispensable concept in the Civil Law System since 1980, none of the Chinese laws or regulations had used such concept until the ‘Property Rights Law’ went into effect in 2007. But, The Property Law of the People’s Republic of China was adopted by the 5th Plenary Session of the 10th National People’s Congress in March 16, 2007 and went into effect on October 1, 2007. As the first property law getting into effect in PRC, it significantly explained the nature of Property Law with Chinese characteristics. Moreover, as the newest Property Law among the main countries in the world, it caused close attentions from all over the world. Although it had been pointed out that the modification of The Property Law, which overcome the limits of private property so as to support the economic activities in market under the Socialist System, is indispensable, such work had still been on heavy progressing. The reason is that, compared with The Chinese Contract Law and The Chinese Security Law, The Chinese Property Law is one of the most indigenous laws and as for one of them, it is closely related to the existence method or an economic structure of a nation. Because the private property rights, which are advocated by Property Law, may protect the unjustified benefit that happened during the reformation, or immobilize the widen gap between the rich and the poor, the biggest problem that it may destroy the socialistic position of communist China happened, which well reflected the economic psychology to specific risks during the legislation. The trace of the claims could be found in the law itself, that The Property Law of China is an unconstitutional legislation. Particularly, it is easy to guess from the each real right and the reservations about the regulation of supervisory authority of the nation and etc, that The Property Law of China that adheres closely to the public ownership of the land and protects the national property, and it establishes law and order in harmony to private ownership will accompany many technical difficulties. The disputed issues should be taken into consideration during the legislation. Taking the transfer of property right as an example, which also caused big issues in South Korea’s adoption of new Civil Law, regarding to this issue, it is seen that The Chinese Property Law did not adopt the formalist principle as that of South Korea, but adopted the Autonomy of Will, which is similar with Japan Property and France Property Law. According to this, The Chinese Property Law which just enforced can be considered as an attractive one.

영어초록

In China, generally the ‘Property Rights’ are defined as rights that can be dominated directly, and enforceable against all other people. Although China has considered the ‘Property Rights’ as an indispensable concept in the Civil Law System since 1980, none of the Chinese laws or regulations had used such concept until the ‘Property Rights Law’ went into effect in 2007. But, The Property Law of the People’s Republic of China was adopted by the 5th Plenary Session of the 10th National People’s Congress in March 16, 2007 and went into effect on October 1, 2007. As the first property law getting into effect in PRC, it significantly explained the nature of Property Law with Chinese characteristics. Moreover, as the newest Property Law among the main countries in the world, it caused close attentions from all over the world. Although it had been pointed out that the modification of The Property Law, which overcome the limits of private property so as to support the economic activities in market under the Socialist System, is indispensable, such work had still been on heavy progressing. The reason is that, compared with The Chinese Contract Law and The Chinese Security Law, The Chinese Property Law is one of the most indigenous laws and as for one of them, it is closely related to the existence method or an economic structure of a nation. Because the private property rights, which are advocated by Property Law, may protect the unjustified benefit that happened during the reformation, or immobilize the widen gap between the rich and the poor, the biggest problem that it may destroy the socialistic position of communist China happened, which well reflected the economic psychology to specific risks during the legislation. The trace of the claims could be found in the law itself, that The Property Law of China is an unconstitutional legislation. Particularly, it is easy to guess from the each real right and the reservations about the regulation of supervisory authority of the nation and etc, that The Property Law of China that adheres closely to the public ownership of the land and protects the national property, and it establishes law and order in harmony to private ownership will accompany many technical difficulties. The disputed issues should be taken into consideration during the legislation. Taking the transfer of property right as an example, which also caused big issues in South Korea’s adoption of new Civil Law, regarding to this issue, it is seen that The Chinese Property Law did not adopt the formalist principle as that of South Korea, but adopted the Autonomy of Will, which is similar with Japan Property and France Property Law. According to this, The Chinese Property Law which just enforced can be considered as an attractive one.

참고자료

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