우리 민법의 부동산임대차에서 「Kauf bricht Miete」 법리형성의 연원(淵源)에 관한 고찰 - 우리 민법의 부동산임대차에 대한 비교법적 시사점을 중심으로 -

This study examines the historical foundation of the principle of “Kauf bricht Miete” in Korean civil law on real estate leases and compares it with the legal developments in Germany, Japan. Roman law classified lease contracts as purely obligatory rights, thereby denying enforceability against third parties, which led to the principle that “sale breaks lease.” In contrast, Germanic law recognized the proprietary nature of lease rights, thereby establishing the principle “Kauf bricht nicht Miete” Modern civil law systems reflect these divergent traditions: Germany explicitly guarantee tenant protection, whereas Japan and Korea adopted the Roman law principle, offering only limited protection. In Korea, the statutory registration system for lease rights under Article 621 of the Civil Code has little practical application, and effective protection is mainly ensured through special legislation such as the Housing Lease Protection Act and the Commercial Building Lease Protection Act. Nonetheless, tenant protection remains insufficient in certain areas, and the influence of “Kauf bricht Miete” persists in principle. This paper argues for reconsideration of the potential real right nature of leasehold, the systematic coherence with special legislation, and the balance between transactional security and tenant protection. Drawing upon the German historical transition, it suggests legislative reforms to ensure more substantial tenant protection in Korean law.