일본 메이지민법(물권편: 총칙·저당권총칙)의 입법이유

Abstract

This article contains the full translation of reform motives of the Meiji Civil Code(the part of property law), which are based on the texts edited by HIRONAKA Toshio, Minp? Shuseian (zensampen) no Riy?sho (Yuhikaku, 1987), and adds some comments from the viewpoints of the Korean lawyer, whose legislation has been widely influenced by the European legal tradition via the Japanese legal scholarship. From the review, the author concludes, that regarding the general principles of property(which provide numerus clausus of jus ad rem, mechanism of right transfer as well as opposability, and extinction via confusion), surprisingly various viewpoints were suggested, all of which, however, aimed at the introduction and strengthening of ownership in the modern sense; consensualism was preferred to formalism by reason that the former was above all thought to be more suitable to the Japanese social realities; and the Japanese drafters maintained general principles of property law while the german drafters decided to abolish them, resulting in that the Japanese code and the Saxon counterpart resemble; that regarding the general part of mortgage(which covers its definition, effects and effective range), though the influence of the French law(or the Romanist legal family) has survived in the textual dimension(for example, substitutes as object of mortgage), some amendments(for example, abolishment of so-called immeuble par destination) could be traced to the German or English law; the reason why a great number of amendments were necessary could be justified in the fact that there had been a lot of articles of administrative and procedural character in the old version of codification; and the creditor-favored trend could be explained not only by the French influence but also by the socioeconomic demand of capital accumulation in the late 19th century.