민법의 현대화와 민법에 사회적 공유 규정 두기

The Korean civil code article 302 [Special Servitude] specifies that the inhabitants of a certain area, as a collective body, are entitled to have the rights to take grass or trees, to catch wild animals, to take earth and sand, to rear live-stock, or to take various profits from the land of the area owned by another person. The rights are a kind of customary right recognized by most communities or societies before the era of the complete privatizations of landownership. As these sorts of rights, there are ‘the Special servitude right’ under the Korean law, ‘the Iphoegwon’ under the Japanese law, ‘the Collective and divided ownership’ under the German law, ‘the Commons’ under the British common law, and so on. Among them, the commons is the globally used name. Most of the rights, however, have been denied or revoked by modern lawmakers who brought individualism, liberalism, and marketeerism into the civil codes. Yet Korea and Japan put and keep the provisions of the rights into their civil codes. In the meanwhile, in 2013, the lawmakers of Korea announced that they planed to the delete the article 302 of the civil code. The plan of deletion was suspended, but it is expected that the plan will be reactivated during the next revision process. The author argues that the lawmakers of Korea should be careful about deleting the article 302, because the revision of the civil code should be carried out according to the social change. Today, the concept of commons is not losing, on the contrary gaining much social favor in Korea. People think that the idea of commons which based on human dignity and equality would act as a proper antidote against predatory capitalism which based on the notion of exclusive private ownership. Accordingly, the author proposes to preserve, repair, and reuse the article 302 for the ancient future of the Korean society.