인역권(人役權)을 통한 환경보호 - 프랑스의 물적 환경채무와 미국의 보전지역권 -

There is no provision for usufruct in the Korean Civil Code. In other countries, however, usufruct is sometimes used as a tool for environmental protection. Landowners may enter into contracts to establish a usufruct with the state, local governments, or charitable associations to safeguard the natural values of their land. Through usufruct, landowners are subject to restrictions or affirmative obligations to protect the environment. This article introduces two examples of environmental usufruct; the obligation réelle environmentale in Frech law and conservation easement in American law. The author then compares the pros and cons of horizontal contracts for environmental usufruct with vertical regulations for environment protection, arguing that environmental usufruct should be legislated in Korea for the following significant advantages: ① encouraging landowners to voluntarily fulfill their obligations, ② enabling the imposition of affirmative duties on landowners, ③ rationalizing decision-making processes within the government by setting a ‘price’ for landownership restrictions. The proposed structure of environmental usufruct includes the following key points: 1. Only the state or local governments can hold environmental usufruct rights. 2. Landonwer’s in rem obligations under environmental usufruct should be registered in the land registry. 3. Paid acquisition of environmental usufruct should be used restrictively as an alternative to regulations involving compensation or onerous contracts stipulated by law. In this case, we can design contract parties’ detailed rights and obligations that are not listed in the current regulation, but do not go beyond the framework of the current regulation(= Big picture based on the principle of democracy, Details based on the principle of private autonomy!). In other cases, the acquisition should generally be free of charge, though tax benefits may be offered as an incentive when necessary. 4.There are no legal limitations on the duration of long-term or short-term contracts. Environmental usufruct in perpetuity is permitted but should be interpreted as having an indefinite term, allowing for termination when the environmental purpose has been fulfilled or becomes impracticable. 5. Transferability and inheritability are not recognized. The author also advocates for the introduction of general usufruct into the Korean Civil Code. While transferability and inheritability of general usufruct would be recognized in principle, the contracting parties may agree to deny these rights, and if this is registered in the real estate registry, the property rights will be governed according to the recorded contents of the agreement.