농지거래법제의 문제점과 개선방안 - 매매, 임대차를 중심으로 -

The legal system of farmland transaction in Korea has unique characteristics in terms of its history and law-making behavior. Under the Korean Constitution of 1948 it was possible to distribute farmland to farmers according to the clause of land-to-the tiller principle. Farmland reform, guided by the Farmland Reform Act in 1950, helped to create a large population of independent farmers. The Farmland Reform Act imposed farmland transaction limits. Specifically, farmland lease contract was entirely prohibited while a farmland transaction was allowed to farmers who possessed the certificate of farmland transaction issued by local authorities. Such principles remained both in the Constitution of 1987and the Farmland Act of 1994. In other words, in principle no farmland lease contracts were allowed, and farmland transactions were conducted under the permit of local authorities. Despite the government's efforts to restrict farmland transactions, the Act failed to eliminate ownership of non-farmers and speculative transactions. Based on a recent farm survey,the proportion of leased farmland is 42.8%, and more than 60% of farmers are tenants. Furthermore, illegal transactions related to farmland lease contracts are close to 20%. In this situation land-to-the tiller principle has almost lost its normative power to regulate the farmland ownership. It also lowers agricultural industry productivity by undermining the efficient use of farmland. This study investigates a wide spectrum of farmland transactions in Korea using the comparative, interpretative and legislative perspectives. First, this study attempts to draw common elements from farmland transaction acts across countries, such as Japan, Germany, and France. These countries consistently utilize their farmland transaction acts to improve agricultural structures, rather than land ownership itself. Second, this study also seeks to clear conceptual ambiguities around the Farmland Act by answering the following questions: What is the farmland, farmers, and independent farming? These concepts are not clearly outlined under the current Farmland Act. Third, there have been some arguments about the validity of transaction contract without official certificates of farmland transaction. For the legal effect of transaction without official certificates under Farmland Reform Act, Korean Supreme Court has only approved the contractual validity of them. However, under the current Farmland Act,Korean Supreme Court holds that certificate is the only required document for registry. Some scholars support these interpretations. In my opinion,these interpretations are not congruent with the purpose of the Constitution and the Farmland Act. The adoption of the fluid invalidity theory from German law (Grundstücksvehrkehrsgesetz) could be alternative solution to solve the present problems. Korean Supreme Court already adopted this theory in the case of land transaction contract which was relevant with the permit of land transaction contract zone. Finally, under the current Farmland Act takes legislative attitude that prohibits farmland lease contract. Farmland lease contract is regulated by the civil law in principle. However, today's farmland lease survives in the form of a new tenancy and common farming structure. In this respect,the government needs to enact special amendments to improve productive activities through the efficient use of farmland. Through the studying of farmland lease acts and the doctrine of the right of preemption across various countries, we need to achieve the Constitution and legislative purposes to stabilize the lease relationship and tenants' rights to purchase in advance.When it comes to farmland transactions, no harmony exists between the administration of justice, the legislative purpose, and the execution of administration. Past reforms have focused mainly on prohibiting the tenancy from the land-to-the tiller principle. However, interpretative discussions about the Act and a new approach to reformation should be undertaken in order to raise agricultural productivity and the efficiency in the use of farmland.