러시아연방 신민법전의 특색(Ⅰ) - 총칙편과 물권법을 중심으로 - (Characteristic of the New Civil Code of the Russian Federation- Focus on the Section of General Provisions & the Law of Ownership and Other Rights to a Thing -)

서지정보

· 발행기관 : 고려대학교 법학연구원
· 수록지 정보 : 고려법학 / 50호 / 319 ~ 361페이지
· 저자명 : 신영호

초록

The transfer from a socialist centrally-planned economy to a
market economy was finalized by the adoption of the new Constitution
of the Russian Federation on Dec. 21st 1993 and the enactment of
the part one(general provisions, right of ownership and other rights
to thing, general part of the law of obligations) of the New Civil
Code of the Russian Federation on Oct. 21st 1994. In 1995 the part
two of the New Civil Code comprising individual types of obligations
was enacted, whereas the part three consisting of inheritance law
and international private law followed on Nov. 26th 2001. Initially
intellectual property was to be included in part three so as to
complete the New Civil Code. However the enactment was delayed
and eventually intellectual property came to constitute part four,
thereby completing the Civil Code. It was enacted on Nov. 24th
2006 and became effective on Jan. 2008. Detailed table of contents
of Civil Code is as follows;
Part one
Section I: General Provisions
Subsection 1 Basic Provisions 1. Civil Legislation, 2. Origin of
Civil Rights and Duties, and Effectuation and Defence of Civil Rights
Subsection 2 Persons 3. Citizens (Natural Persons), 4. Juridical
Persons, 5 Participation of Russian Federation, Subjects of the
Russian Federation and Municipal Formations in Relations
Regulated by Civil Legislation
Subsection 3 Objects of Civil Rights 6. General Provisions, 7.
Securities, 8. Nonmaterial Benefits and the Defence Thereof
Subsection 4 Transactions and Representation 9. Transactions,
10. Representation and Power of Attorney
Subsection 5 Periods and Limitations 11. Calculation of Periods,
12. Limitations
Section II: The Right of Ownership and Other Rights to a
Thing 13. General Provisions, 14. Acquisition of Right of Ownership,
15. Termination of Right of Ownership, 16. Common Ownership, 17.
Right of Ownership and Other Rights to Thing in Land, 18. Rights
of Ownership and Other Rights to Thing in Dwelling Premises, 19.
Right of Economic Jurisdiction, Right of Operative Management, 20
Defence of Right of Ownership and Other Rights to Thing
Section III: General Part of the Law of Obligations
Subsection 1 General Provisions on Obligations, 21. Concept of
and Parties to Obligations, 22. Performance of Obligations, 23.
Securing Performance of Obligations
24 Change of Persons in Obligation, 25. Responsibility for Violation
of Obligations, 26. Termination of Obligations
Subsection 2 General Provisions on Contract 27. Concept and
Conditions of Contract, 28. Conclusion of Contract, 29. Change and
Dissolution of Contract
Part two
Section IV: Individual Types of Obligations 30. Purchase-Sale, 31. Barter, 32. Gift, 33. Rent and Maintenance of Dependent for
Life, 34. Lease, 35. Hire of Dwelling Premises, 36. Uncompensated
Use, 37. Independent Work, 38. Fulfillment of Scientific Research,
Experimental Construction Design, and Technological Work, 39.
Compensated Rendering of Services, 40. Carriage, 41. Transport
Expediting, 42. Loan and Credit, 43. Financing Under Assignment
of Monetary Demand, 44. Bank Deposit, 45. Bank Account, 46.
Settlement of Account, 47. Keeping, 48. Insurance, 49. Commission,
50. Actions in Another's Interest Without Commission, 51. Commission
Agency, 52. Agency, 53. Trust Management of Property, 54.
Commercial Concession, 55. Simple Partnership, 56. Public Promise
of Reward, 57. Public Competition, 58. Conducting Games and
Betting, 59. Obligations as Consequence of Causing Harm, 60.
Obligations as Consequence of Unfounded Enrichment
Part three
Section V: Inheritance Law 61. General Provisions on Inheriting,
62. Inheriting by Will, 63. Inheriting by Operation of Law, 64.
Acquisition of Inheritance, 65. Inheriting of Individual Types of
Property
Section VI: International Private Law 66. General Provisions,
67. Law Subject to Application When Determining Legal Status of
Persons, 68. Law Subject to Application to Property and Personal
Nonproperty Relations
Part four
Section Ⅶ: Law on the Result of Intellectual Activity and the
Means of Individualization 69. General Provisions, 70. Copyright Law,
71. Rights Related to Copyright Law, 72. Patent Law, 73. Law on
Selection Achievement, 74. Law on Topographies of Integrated
Circuits, 75. Law on the Secret of Production(Know-how), 76. Law on the Means of Individualization of Legal Persons, Goods, Work,
Service and Firms, 77. Law on the Use of the Result of Intellectual
Activity , as part of Single Technology
This paper will limit its scope of study to the general
provisions and real rights of the Russian Federation's New Civil
Code. The rest will be undertaken in later studies.
By examining the central elements of the general part and real
rights, it can be noted that in terms of its basic principles, legal
ideas and concept, the New Civil Code of the Russian Federation
has for the most part shed its legacy of the past socialist civil
code. The New Civil Code is based on the notion of a market
economy and therefore resembles the traditional civil codes of the
West. One can notice the strong influence of German and Swiss
civil law, as reflected in the Civil Code bill of Tsarist Russia, not
to mention that of the Netherlands and Italy which have
commercial law combined with civil law. In addition, the impact of
common law seems quite evident on the New Civil Code. At the
same time the 1964 Civil Code retains some of its features in the
new version with regard to the general part and real rights. This
is due to the fact that the 1964 Civil code was based on the
Pandekten system so characteristic of continental law, the socialist
planned economy notwithstanding. Therefore it was difficult to
completely move away from the legal concepts and definitions as
well as the systemic and logical structure of the 1964 Civil Code.

영어초록

The transfer from a socialist centrally-planned economy to a
market economy was finalized by the adoption of the new Constitution
of the Russian Federation on Dec. 21st 1993 and the enactment of
the part one(general provisions, right of ownership and other rights
to thing, general part of the law of obligations) of the New Civil
Code of the Russian Federation on Oct. 21st 1994. In 1995 the part
two of the New Civil Code comprising individual types of obligations
was enacted, whereas the part three consisting of inheritance law
and international private law followed on Nov. 26th 2001. Initially
intellectual property was to be included in part three so as to
complete the New Civil Code. However the enactment was delayed
and eventually intellectual property came to constitute part four,
thereby completing the Civil Code. It was enacted on Nov. 24th
2006 and became effective on Jan. 2008. Detailed table of contents
of Civil Code is as follows;
Part one
Section I: General Provisions
Subsection 1 Basic Provisions 1. Civil Legislation, 2. Origin of
Civil Rights and Duties, and Effectuation and Defence of Civil Rights
Subsection 2 Persons 3. Citizens (Natural Persons), 4. Juridical
Persons, 5 Participation of Russian Federation, Subjects of the
Russian Federation and Municipal Formations in Relations
Regulated by Civil Legislation
Subsection 3 Objects of Civil Rights 6. General Provisions, 7.
Securities, 8. Nonmaterial Benefits and the Defence Thereof
Subsection 4 Transactions and Representation 9. Transactions,
10. Representation and Power of Attorney
Subsection 5 Periods and Limitations 11. Calculation of Periods,
12. Limitations
Section II: The Right of Ownership and Other Rights to a
Thing 13. General Provisions, 14. Acquisition of Right of Ownership,
15. Termination of Right of Ownership, 16. Common Ownership, 17.
Right of Ownership and Other Rights to Thing in Land, 18. Rights
of Ownership and Other Rights to Thing in Dwelling Premises, 19.
Right of Economic Jurisdiction, Right of Operative Management, 20
Defence of Right of Ownership and Other Rights to Thing
Section III: General Part of the Law of Obligations
Subsection 1 General Provisions on Obligations, 21. Concept of
and Parties to Obligations, 22. Performance of Obligations, 23.
Securing Performance of Obligations
24 Change of Persons in Obligation, 25. Responsibility for Violation
of Obligations, 26. Termination of Obligations
Subsection 2 General Provisions on Contract 27. Concept and
Conditions of Contract, 28. Conclusion of Contract, 29. Change and
Dissolution of Contract
Part two
Section IV: Individual Types of Obligations 30. Purchase-Sale, 31. Barter, 32. Gift, 33. Rent and Maintenance of Dependent for
Life, 34. Lease, 35. Hire of Dwelling Premises, 36. Uncompensated
Use, 37. Independent Work, 38. Fulfillment of Scientific Research,
Experimental Construction Design, and Technological Work, 39.
Compensated Rendering of Services, 40. Carriage, 41. Transport
Expediting, 42. Loan and Credit, 43. Financing Under Assignment
of Monetary Demand, 44. Bank Deposit, 45. Bank Account, 46.
Settlement of Account, 47. Keeping, 48. Insurance, 49. Commission,
50. Actions in Another's Interest Without Commission, 51. Commission
Agency, 52. Agency, 53. Trust Management of Property, 54.
Commercial Concession, 55. Simple Partnership, 56. Public Promise
of Reward, 57. Public Competition, 58. Conducting Games and
Betting, 59. Obligations as Consequence of Causing Harm, 60.
Obligations as Consequence of Unfounded Enrichment
Part three
Section V: Inheritance Law 61. General Provisions on Inheriting,
62. Inheriting by Will, 63. Inheriting by Operation of Law, 64.
Acquisition of Inheritance, 65. Inheriting of Individual Types of
Property
Section VI: International Private Law 66. General Provisions,
67. Law Subject to Application When Determining Legal Status of
Persons, 68. Law Subject to Application to Property and Personal
Nonproperty Relations
Part four
Section Ⅶ: Law on the Result of Intellectual Activity and the
Means of Individualization 69. General Provisions, 70. Copyright Law,
71. Rights Related to Copyright Law, 72. Patent Law, 73. Law on
Selection Achievement, 74. Law on Topographies of Integrated
Circuits, 75. Law on the Secret of Production(Know-how), 76. Law on the Means of Individualization of Legal Persons, Goods, Work,
Service and Firms, 77. Law on the Use of the Result of Intellectual
Activity , as part of Single Technology
This paper will limit its scope of study to the general
provisions and real rights of the Russian Federation's New Civil
Code. The rest will be undertaken in later studies.
By examining the central elements of the general part and real
rights, it can be noted that in terms of its basic principles, legal
ideas and concept, the New Civil Code of the Russian Federation
has for the most part shed its legacy of the past socialist civil
code. The New Civil Code is based on the notion of a market
economy and therefore resembles the traditional civil codes of the
West. One can notice the strong influence of German and Swiss
civil law, as reflected in the Civil Code bill of Tsarist Russia, not
to mention that of the Netherlands and Italy which have
commercial law combined with civil law. In addition, the impact of
common law seems quite evident on the New Civil Code. At the
same time the 1964 Civil Code retains some of its features in the
new version with regard to the general part and real rights. This
is due to the fact that the 1964 Civil code was based on the
Pandekten system so characteristic of continental law, the socialist
planned economy notwithstanding. Therefore it was difficult to
completely move away from the legal concepts and definitions as
well as the systemic and logical structure of the 1964 Civil Code.

참고자료

· 없음