농지상속을 둘러싼 법적 쟁점과 대안 - 대법원 2019. 2. 14. 선고 2017두65357 판결 -

Korean Supreme Court has recently sentenced that it was impossible for the government to order disposal against non-farmer despite his illegal use of farmland(Supreme Court of Korea, Decision of 14 Feb. 2019, 2017 Doo65357), which overruled the decision of the trial court and the appellate court. Their judgments are based on the premise that ‘acquisition’ in Article 6 (2) of the Farmland Act and ‘ownership’ thereafter are separate matters, so farmland should be continuously cultivated for agricultural management. If not, the inheritor got disposal order to be fined heavily and sell the farmland. Contrariwise, Korean Supreme Court resulted in the opposite conclusion that it could not be considered that the cultivation obligation was imposed even at the point of ownership. Over time, it gives rise to big challenging to the government charging in farmland inheritance practice. So it is urgent and important to build a new crystal clear guideline for Korean Justices asked to reform and fill the gap in the present farmland law. Back to the case, the legal issues varied, as follow: (1) whether the inherited farmland is obligated to cultivate, (2) the illegally-dedicated farmland is still identical farmland, (3) how far the disposition obligation reached? (4) There is also a problem of harmonization of the principle of secure property rights and land to the tiller under the Constitution. In this article, after analyzing the problem of interpretation from the case, comparing with the differences of foreign countries, I suggested humble opinions for the improvement of farmland inheritance, even farm succession in the light of better farming. To sum up, this paper includes some meaningful suggestions: (1) Inherited farmland owners within the limit of 10,000㎡ ownership need to maintain the shape of farmland, although he doesn't have to cultivate for himself. (2) Under Korean law, the permission of non-farmers to own farmland for inheritance and migration resembles the Japanese or French model incompletely. Korean model need to add their specific supplementary measures (e.g. succession contract, preemptive rights, etc.). (3) Lastly, within the limits of the inheritance system under the Civil Law, a contract between the heirs or the right to purchase priority must be granted so that the farm or farmland can be inherited to the farmers near the heirs who are farmers or the heirs with qualified interests. More on those matters, agricultural activities or farmer qualification system will be the prerequisites.