임대차의 존속기간에 대한 고찰 - 민법 제651조 제1항에 대한 위헌결정(2011헌바234)을 계기로 - (A Review on the Duration of Lease - with the unconstitutional decision to the Article 651(1) of the Korean Civil Code -)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 72권 / 115 ~ 161페이지
· 저자명 : 김영주

초록

There has not been a lot of discussions about the duration and termination of the lease. In such circumstances, the unconstitutional decision to the Article 651(1) of the Korean Civil Code(“2011hun-ba234”), is of great significance. Looking at the legislative process of KCC Article 651(1), legislators regulated a limit on the maximum period for certain types of lease instead of deleting the limitation of the shortest period of time that had been originally defined in the KCC Draft. This was reflected in the intention of the legislator who would like to consider Japanese Civil Code and Japanese Land Lease Law at that time and wanted to be attributable to clarify the distinction between superficies and lease. Since then the Korean Supreme Court has interpreted legislative intent of the KCC Article 651(1) as avoiding social and economic losses that can result from long-term lease and that this article is a mandatory provision. But when considering the meaning of the KCC Article 651(1) at this point, I have no choice but to agree about reasons based judgment in “2011hun-ba234”. In fact, There are several legislations which is guaranteed the duration in more than 20 years, other than the KCC. Furthermore, considering today's advanced building techniques, various types of buildings and changes of building management methods etc., it is difficult to maintain of legislative intent on the KCC Article 651(1). I believe that it is appropriate to leave it to the option of party how to specify the duration of the lease. So it is undesirable to lay the regulations that limit the shortest or the longest duration of the lease indiscriminately on the KCC. But in case of long-term lease contract, it is necessary to provide a solution the parties can deviate from the binding force of the contract when a substantial period of time has passed since the contract was signed.

영어초록

There has not been a lot of discussions about the duration and termination of the lease. In such circumstances, the unconstitutional decision to the Article 651(1) of the Korean Civil Code(“2011hun-ba234”), is of great significance. Looking at the legislative process of KCC Article 651(1), legislators regulated a limit on the maximum period for certain types of lease instead of deleting the limitation of the shortest period of time that had been originally defined in the KCC Draft. This was reflected in the intention of the legislator who would like to consider Japanese Civil Code and Japanese Land Lease Law at that time and wanted to be attributable to clarify the distinction between superficies and lease. Since then the Korean Supreme Court has interpreted legislative intent of the KCC Article 651(1) as avoiding social and economic losses that can result from long-term lease and that this article is a mandatory provision. But when considering the meaning of the KCC Article 651(1) at this point, I have no choice but to agree about reasons based judgment in “2011hun-ba234”. In fact, There are several legislations which is guaranteed the duration in more than 20 years, other than the KCC. Furthermore, considering today's advanced building techniques, various types of buildings and changes of building management methods etc., it is difficult to maintain of legislative intent on the KCC Article 651(1). I believe that it is appropriate to leave it to the option of party how to specify the duration of the lease. So it is undesirable to lay the regulations that limit the shortest or the longest duration of the lease indiscriminately on the KCC. But in case of long-term lease contract, it is necessary to provide a solution the parties can deviate from the binding force of the contract when a substantial period of time has passed since the contract was signed.

참고자료

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