독일 통일 후 동독 부동산 관련 주요 법적 쟁점사항과 임대차 계약 관련 재산법의 변화

Following German reunification, key legal issues concerning real estate in East Germany were intertwined with various conflicting interests, including the protection of property rights, landlords' rights, and tenants' rights. Regarding the usage relationship between two state-owned enterprises, the transferring company built a holiday bungalow for its employees on its property and subsequently used the property itself. Since contract law did not explicitly regulate informal contractual relationships, legal disputes arose concerning the ownership of holiday properties belonging to state-owned enterprises. The provisions of the German Civil Code (ZGB) regarding the ownership of land and buildings only applied if other legal regulations did not expressly provide a basis. East German law did not recognize separate ownership of buildings from ownership of land. Therefore, separate ownership of buildings could not arise independently of ownership of land. The transfer of formerly public ownership of land, including buildings, was only possible to a public limited company, the legal successor of an East German state-owned enterprise. A second legal question concerns whether, in the case of the forced privatization of medium-sized companies, the former sole owner or their legal successor can assert a claim against the Federal Republic of Germany for the return of the expropriated company shares pursuant to Article 232, paragraph 1 of the Unification Treaty. A third legal question concerns whether a clause in a lease agreement that limits the termination of the lease to mutual agreement, notice of termination by the tenant, or court-ordered annulment restricts the right to terminate a lease for owner-occupancy. Since October 3, 1990, the German Civil Code (BGB) has also applied to leases in eastern Germany concluded before the accession of the new federal states. Therefore, contractual provisions validly agreed upon under the BGB take precedence over provisions of the BGB, unless they conflict with mandatory law. These key legal questions, including the permissibility of adverse legislative amendments related to compensation claims and retroactive measures, will have implications for relevant real estate law. According to the Federal Constitutional Court, the principle of general equality under Article 3 Paragraph 1 of the Basic Law is violated if a group of people is treated unequally, even if there are no substantial or significant differences between the two groups that would justify such unequal treatment. In this case, the legislature could improve property law issues through legislation. In the course of German reunification, the provisions of the civil codes of East and West Germany were incorporated into the Introductory Act to the German Civil Code (EGBGB). Certain legal systems that had developed in East Germany, such as real estate law, were initially retained provisionally and subsequently regulated by the Introductory Act to the German Civil Code. East Germany began enacting the necessary legislation after October 1989, but these reforms could only be implemented selectively within a short period, focusing on clarifying property law and adjusting the law of claims. In the course of German reunification, the reassessment of property rights was linked to demands for just restitution and reparations. Following German reunification, the socialist system of communal ownership was adopted into Western European legal systems, and real estate law was adapted to German federal law. While many regulations and contracts were amended as part of the adaptation of East German leases to West German law after reunification, some specific provisions of the original contracts remained valid. One of the most significant changes in tenancy law was the introduction of the German Civil Code (BGB) in the GDR, which unified the provisions for leases in the reunited Federal Republic of Germany.Although key legal issues related to real estate were partially resolved within the constitutional framework after reunification, the consequences of decades of division are still felt today. Particularly with regard to tenancy law and unresolved ownership claims to East German real estate, it is necessary to carefully examine and clearly apply the elements of German tenancy law in order to more precisely define the conditions for unresolved ownership claims. This requires further clarification of the relevant legal elements.