미국법상 지역권(Easement)에 관한 서론적 고찰

Although the U.S. easement system has historically been rooted in the U.K. system, it can be seen that in the course of its development, it has progressed in a somewhat different direction from the U.K. law. It is thought that the special advantage of the U.S. easement system lies in its practicality. In the case of U.K. law, the concept of “running with land” as an absolute requirement of easement was established and interpreted very strictly, so that the various types of easements required in reality could not be sufficiently embraced. In particular, in the process of incorporation of real covenants into easements, quite vague and unnecessary devices such as the “privity of estate” requirement were added, delaying the establishment of the easement system. On the other hand, as long as the US law does not deviate from the overall purpose of the easement system, it can be evaluated as practical in that it fully accommodates the market demand without being bound by the framework of the above easement concept. In particular, breaking away from the traditional position of defining easements as rights for the benefit of land and allowing easements in gross(not as personal rights, but as easements) is to meet various demands in the market for land use. If the law of servitudes is ultimately aimed at the private coordination and control of land use, it will be necessary to fully consider the actual demand in the market rather than being limited only to the traditional concept and form of easement. In the end, it is also accord with the public interest of efficient use and control of land.