상린관계에 관한 민법개정논의

i) Because real estate, particularly land, exists adjacent to each other unlike the movable property, the control of mutual use of the land adjacent to each other is required for smooth use of land. The legal relation with the purpose to control the mutual use of the land adjacent to each other is referred to as neighboring relation. It is regulated by Civil Code Article 215 through Article 244. ⅱ) The second subcommittee of civil code revision committee in Ministry of Justice in 2011 proposed the legislation of Article 217(prohibition of disturbance against adjoining land by soot, etc.), Articles 219 and 220(right of passing over surrounding land) and Article 242-2(construction over one’s boundary) as restrictions with duty to compensate for ownership to adjust the sentence of an interest between those who are in neighboring relations. ⅲ) The original meaning of Article 217 of the Civil Code regulates duty of patience at a certain level upon taking an action of injunction of property owner about environment infringement. However, since Article 217(2) regulates only duty of patience caused by conventional usage of land of infringing land, the ownership of owner of damaged land is excessively restricted. Therefore, duty of patience about environment infringement is regulated clearly. With regards to infringement caused by conventional usage of land, we would like to adjust the sentence of an interest between those who are in neighboring relations by recognizing the claims of prevention measures and compensation claims in which victims can expect the economical compensation. iv) With regards to right of passing over surrounding land of Civil Code Article 219, there is one position to regulate right of passing over surrounding land as the form of direct restriction of ownership of neighboring land owner by setting duty of patience, other positions of French Civil Code and Switzerland Civil Code considering right of passing over surrounding land as statutory servitude. Therefore, we would like to regulate the form of direct restriction of ownership of neighboring land owner by setting duty of patience by law of neighboring land owner. In addition, in case of partition and partial assignment in Article 220, we would like explicitly regulate the compensation obligation unlike the existing regulation. ⅴ) Construction over boundary of neighboring land is referred to the case in which buildings or protruding part of buildings infringes on neighboring land. Current Civil Code does not have special provisions to prevent the devastating demolition from the perspective of public interest with the regard to this construction over one’s boundary. Accordingly, in amendments to Civil Code by Ministry of Justice in 2004, Civil Code Article 242-2(construction over one’s boundary) was newly established and the regulation to limit the demolition of construction on one’s boundary was made with reference to german civil law Article 912. In addition, the second subcommittee of civil code revision committee in Ministry of Justice in 2011 recognized a neighboring land owner’s duty of patience with the regard to construction over one’s boundary like german civil law Article 912, and therefore the legislation to directly limit ownership was established.