한국민법에 대한 일본민법의 영향과 향후의 관계 - 비교법의 연구대상으로서의 일본민법을 위하여 -

서희석 한국민사법학회 2010 民事法學 Vol.52 No.-

This article will take a general view of the affect of Japanese civil law on the establishment of Korean civil law and on the theories and case law. The general view may be summarized as following. The Korean Civil Law can be evaluated to adopt 'the Japanese Civil Law modeled after the German Civil Law' by reference to the Chinese Civil Law and Manchu National Civil Law which were newly established by the adoption of the Japanese Civil Law theories. Here, the issue is which civil law, the German Civil Law or the Japanese Civil Law, must be evaluated to affect more on the Korean Civil Law, In conclusion, both Civil Laws affected on the Korean civil law. The Japanese theories have affected on the Korean civil law. The Korean civil law had gone through the time depending on the Japanese Civil Law and the time independent from it. Since the 2000's, Korean scholars have considered the Japanese Civil Law as one of comparative laws. Meanwhile, it has never seemed to analyze cases through the specific and systematic comparison how the Japanese case law has affected on the Korean case law. Considering it, this article make an effort to demonstrate through the comparison of two countries' case laws that the Korean case law is highly dependent on the Japanese case law, which is good enough to call “the reception of case law”. From this overview, I conclude that now is the time Korean Civil Law overcame “the Japanese Civil Law and further the two civil laws are mutually exchanged and coexist. In order to settle down this trend, first of all we need to be faithful to the study of our Civil Law. As a tool for resolving various legal problems, Civil Law theories need to be specified and systematized. Also, this article suggests to study comparatively the case laws of the two countries in relation with the Japanese civil law.

일제의 실증주의법에 저항한 우리 민중의 자연법 사상과 그 실천-자연법 사상에 기초한 우리 민중의 저항권을 중심으로-

김상용 한국법제연구원 2010 법제연구 Vol.- No.39

Acts, which had been legislated and implemented by Japanese Occupational Authorities in Korea during colonial period from 1910 to 1945, had been very bad and brutal, because they had been on the basis of legal positivism. Colonial controls by imperialistic Japan may be evaluated as illegal torts by statutes to Korea and Korean peoples. The Japanese Occupational Authority had carried out unlawful and brutal controls to Korea and Korean peoples on the basis of statutes, which had been decreed by Japanese King or Governor of the Japanese Occupational Authority, who had transplanted Japanese acts in Korea through his decrees. All Governors of the Japanese Occupational Authority had been military generals, not civilians. The Governors had powers to legislate acts in Korea. But they had not sufficient knowledges of law enough to legislate acts. Therefore, they had mainly transplanted Japanese acts, which had been legislated by Japanese Imperial Diet, into Korea through their decrees. If necessary, Japanese King had directly issued his decrees, which had been effective in Korea. The Japanese Monarchy of those days was very imperialistic and persued colonial occupations over neighboring countries. Namely, ultimate goal of the then Japanese Imperilialsitic Monarchy was to be become a nation for wealth and military power. As a result of such political policies, the Japanese Imperialistic Monarchy expanded its colonies by conquering its neighboring countries and provoked the Second World War in Asia and the Pacific. By the decrees by Japanese King or the Governors of the Japanese Occupational Authority during colonial period in Korea, the Japanese Occupational Authority had coerced Korean peoples to change their original names into those of Japan, not to speak Korean language, confiscated agricultural products, mobilized Korean peoples for war coercively and recruited Korean young women for sexual comfort of Japanese soldiers etc.. These unhuman torts of Japan had been carried out through legislated bad statutes, which was effective by the legal thought of positivism, not by the thought of natural law. The then Japanese Imperialistic Monarchy had followed and kept the legal positivism. Korean peoples had resisted against bad and brutal controls and coercions with belief of thoughts of natural law, which admits only justifiable acts as effective law. Korean peoples had carried out independent movement only with belief of natural law. Leaders of independent movements had established Provisonal Korean Government and legislated modern Provisonal Korean Constitution, which had guaranteed basic human rights of Korean. Such independent movements had continued for duration of colonial period continously at great sacrifices of Korean underprivileged peoples. Such Korean sacrificial independent movements could be carried out on the basis of belief of unwritten natural law, which justifies resitances against bad colonial policies and brutal controls by Japanese unhuman acts on the philosophical basis of legal positivism. Finally, Korea has been emancipated from the colonial york of Imperialistic Japan due to the continous resistances of Korean peoples with the firm belief of natural law. Therefore, the thoughts of natural law has been able to be the fundermental legal thoughts of Korea even after establishment of Korean Government. It would be able to be evaluated that the unwritten natural law in the minds of Korean peoples has won over the written legislated imperialistic bad acts of Japan on the legal positivism. Even though Korean peoples had experienced harsh hardnesses during the colonial period, we had kept the thoughts of natural law and developed natural law, which could make peoples live dignitary and resist against unlawful measures of states. Even though the acts would be legislated by competent authorities, they are not able to be acknowledged and effective as acts, if their contents would not be conr connt with the universial comm...

日帝初期 ‘朝鮮商業會議所令’의 制定과 朝鮮人 商業會議所의 解散

전성현(Chun Sung-hyun) 한국사연구회 2002 한국사연구 Vol.118 No.-

Kyungsung Japanese Chamber of Commerce formed an association with other japanese chambers in Chosun, which led to first(190l) to 12th sessions(1913), in an effort to establish a legal basis for the chambers, or corporation. This was very important in accomplishing objectives of Japanese commercial chambers in Chosun such as the promotion of Japanese business development and the implementation and supplementation of Japanese colonial policies. Kyungsung Japanese Chamber of Commerce did not appeal to be a corporation any longer since 1910. Two commerce chambers in Kyungsung sought to be integrated with each other as Chosun became annexed into Japan. Such effort was substantially proceeded, but had no success because Japanese people were considered as foreigners in accordance with "Laws of Private and Public Bodies". Both the chambers resolved to be merged with each other when applicable laws were enacted. The Japanese Empire accepted appeals by Japanese commercial chambers based in Chosun and tried to enact the Law of Commercial Chamber that could comply with their colonial policies. Prior to the enaction, the Japanese Empire abolished laws which defined Japanese people as foreigners and modified local administrative systems. Then in 1915, the Law of Chosun Commercial Chamber were created and pronounced. Although it was an outcome of the acceptance of appeals by Japanese commercial chambers located in Chosun, the Law of Chosun Commercial Chamber was also a system through which the imperialist Japan controlled the economy of their colony. Through the system, Japan attempted integration between two chambers of commerce set up by Chosun and Japanese people, respectively and conversion of such integrated chamber into a public body whose business range was restricted according to applicable laws only to promote the development of commerce and industry. Then the imperialist Japan tried to control and supervise such public body to prevent it from developing into a political movement with no compliance with the Japanese government-general. Further, the Japanese Empire wanted newly established chambers of commerce to be not only an establishment for the development of commerce and industry, but also an autonomous body of each region. All these intents and objectives pursed by Japan were reflected and represented directly in the law. To govern their colony effectively. Japan organized Chosun Commercial Chamber mainly with Japanese people and tried to attract some businessmen of Chosun. Concerning qualification for chamber membership, the number of chamber members and designation of chairman and vice chairmen, the Japanese Empire clearly and apparently discriminated the members according to their nationality, Chosun and Japan. Under the law mentioned above, rights of commercial chambers in Chosun were dramatically reduced and forced to do activities in passive ways, ultimately adapting themselves to economic policies made by the Japanese government-general. This was implemented through the passive definition of the business range of the chambers. The Law of Chosun Commercial Chamber made Chosun and Japanese commercial chambers around this nation face risks of being restructured. Commercial chambers by businessmen whose nationality was Chosun in traditional areas of the development of commerce and industry were firstly closed by the imperialist Japan because they were not located in cities. Chosun and Japanese commercial chambers in cities were encouraged to be united into one. There were Kyungsung Commercial Chamber and Kyungsung Japanese Chamber of Commerce in Kyungsung. Both of the chambers jointly orgnized the meeting of prornoters(63 Japanese and 50 Chosun people). The Janpanese promoters prepared the articles of association that was advantageous only to themselves. The articles was easily passed by the meeting. The articles were also approved by qualified chamber members and then by the Japanese government-general.

한국 로스쿨(법학전문대학원)제도의 개선방안에 관한 연구 -일본 로스쿨(법과대학원)제도의 운영 경험을 중심으로-

( Chang Shin Kwack ) 단국대학교 법학연구소 2013 법학논총 Vol.37 No.4

Both Korean and Japanese Government decided to introduce the ‘law school system’ for reforming the long-debated problems such as the education system in the college of law, the bar-examination and the training system of the future legal professionals. While Korean government approved only small number of law schools by establishing the high criteria which were very difficult to reach. Japanese government approved many law schools if they passed the certain low criteria which were very easy to meet. Twenty-five law schools with 2,000 students in Korea started in March of 2009, while sixty-eight law schools with 5,600 students in Japan started in April of 2004. There are many similarities between Korean law school system and that of Japanese in that two systems are one of modified American-style law school. However, we can find more differences than we think, if we compare them in detail. During the five-year-experiences of operation, Korean law schools found some problems. We can separate the problems of Korean law school into two categories. One group of problems is short-term problems which are necessary for the soft landing of Korean law school system. The other group of problems is fundamental problems including the assertion of abolition of law school system itself. Short-term problems of Korean law schools are as follows, excessive financial burden of students because of expensive tuition, abnormal operation phenomena of law school curriculum because of the over-heated competition for good GPA and for the preparation of bar-examination, the criticism on the lack of law-related knowledge of law school graduates because of the shortage of learning time within 3 years of law school system, serious financial difficulties of each law school, the serious difficulties in finding the lawyer-jobs for the law school graduates and so on. From the opening of law school system, Japanese law schools have been in difficult situation because of fundamental problems such as imbalance between the number of law school(students) and number of successful applicants in Japanese Bar-examination. For example, only 26.8%(2,049) of applicants(7,653) could pass the Japanese Bar-exam. in 2013. Because of the above-mentioned problems, Japanese law schools have suffered from the shortage of applicant in entrance examination. In 2013, 64 law schools(93%) could not fill the entrance exam. quota of each law school, and only 2,698 students(63%) entered 69 law schools with the total quota of 4,261 students. The on-going process of reforming the Japanese law schools could be expected from the start of law school system. And the problems of Japanese law schools have been deteriorating from the opening year. Finally in August of 2012 the Central Government of Japan decided to establish ‘Committee of Ministers for the Reform of the Legal Professionals’ Education and Training’. And it was expected to finalize its duty in August of 2013. The Committee disclosed its final report in July 16th of 2013. According to the report, the Committee decided to maintain the current law school system for the time being. It decided to reform some easy problems of law school system, however it delayed its final decision regarding the difficult tasks such as the optimum number of lawyers in Japan in the future, the methods of reforming the low-performance law schools, preliminary-exam. system for the regular bar-exam.Japanese Government decided to create and operate the new special Committee composed of 6 related-Ministers and the Advisory Group composed of experts under its jurisdiction. The newly established Committee will deal with the fundamental reform of the Japanese law school systems including the fore-mentioned difficult tasks. The new Committee was established in September of 2013 and it will last for 2 years. From the lessons of the Japanese law school reform experience, there can be two approaches for Korean law schools. In the short term, Korean law schools have to improve the urgent problems arising from the 5 years of operation. In the long term, Korean law schools and Government had better wait and see the Japanese reform of law school system. Lastly, it is advisable that Korean Central Government and Korean Association of Law Schools should be prepared to learn from the Japanese law school reform experiences. And it is also advisable that Korean Central Government and National Assembly should establish the ‘Joint Committee’ to discuss the ‘Reform Plan’ of the Korean law schools.

中田薰法律思想及其對近代日本法律史學科建立的影響

Hu wenyu(胡文字) 경북대학교 아시아연구소 2018 아시아연구 Vol.- No.22

Kaoru Nakata, a Japanese legal historian and comparative jurist, has a pioneering contribution in the study of Japanese history of law and he is one of the founders of the history of Japanese law. At the same time, for the development of Japanese legal historiography, Mr. Kaoru Nakata has also trained a large number of outstanding and excellent scholars and these scholars have turned into the mainstay of the advancement of Japanese history of law until now. Taking Mr. Kaoru Nakata’s works and thoughts as the center, this paper mainly studies two main questions: in the first place, as the first part in the thesis, the author is aimed at to study Mr. Kaoru Nakata’s legal thoughts from Mr. Kaoru Nakata’s birth and Mr. Kaoru Nakata’s growth and Mr. Kaoru Nakata’s background and Mr. Kaoru Nakata’s works. Mr. Kaoru Nakata was born in the middle and late period of the Meiji Restoration in Japan. The education and growth experience of Mr. Kaoru Nakata’s youth were deeply influenced by the Meiji Restoration, and Mr. Kaoru Nakata received a large number of ideas of a great amount of modern countries and all kinds of areas. During the period of Meiji Restoration, Japanese society was in a critical period of transformation from Tokugawa feudal rule to modern society. In order to fit in with this kind of rapid social transformation as soon as possible, from the cultural perspective, it is necessary to turn from the traditional Zhu Zi tradition to the western political thoughts and at the same time, it is necessary to turn from the traditional Zhu Zi tradition to the state theories as well. Japan’s absorption of western culture is an a little bit tortuous and complex process, and there are a large number of thinkers’ games and a large number of thinkers’ discussions on this kind of issue. In the mainstream view of the Japanese and in the eyes of a great amount of scholars in Japan, the original changes and variations from the western view is also from the learning of advanced science and technology and then the acceptance of ideology and culture. Mr. Kaoru Nakata grew up in this era of long thought contending and ideological schools of thought contend for a long time, so Mr. Kaoru Nakata’s thoughts will inevitably be influenced by the social trend of thought and the mainstream view of the large number of Japanese in the period of Meiji Restoration. Mr. Kaoru Nakata’s main research method is characterized by comparing Japanese history of law with German history of law, by comparing Japanese history of law with French history of law and by comparing Japanese history of law with British history of law. With the research method of ancient precedents and on the basis of a large number of ancient precedents, Mr. Kaoru Nakata studied the history of Japanese law on the basis of having a good command of a large number of academic literature and materials. Mr. Kaoru Nakata’s research on Japanese history of law and comparative history of law laid a solid and strong foundation and basis for the development of Japanese history of law. In the second place, as the second part in the thesis, the author is aimed to study and research Mr. Kaoru Nakata’s thoughts about history of law in Japan and the role of Mr. Kaoru Nakata’s many disciples in the future of Japanese legal history. from Mr. Kaoru Nakata’s contribution at the initial period of the history of Japanese law. Mr. Kaoru Nakata mainly studied the history of Japanese law and the history of comparative law under the guide of Mr. Miyazaki. At the same time, Mr. Kaoru Nakata’s interests and hobbies in the history of law is deeply influenced by Montesquieu’s separation of three powers thoughts and at the same time Mr. Kaoru Nakata’s interests and hobbies in the history of law is also deeply influenced by geographical determinism thoughts. The first study of the history of Japanese law as a branch was Mr. Miyazaki of the Imperial University of Tokyo in Japan. He introduced the 나까다(中田薰)는 일본 법률사학자ㆍ비교법학자로서, 일본 법률사학 연구를 개척한 일본 법률사학과 창시자 중 한 명이다. 동시에, 나까다(中田薰) 선생은 일본 법률사학계 발전을 위해 여러 우수한 학자를 양성하였으며, 지금에 와서 보면 이 학자들이 일본 법률사학계를 발전시킨 핵심 역량이 되었다는 것을 알 수 있다. 본 문장은 나까다(中田薰) 선생의 저작과 그 사상을 중심으로, 두 개의 문제를 주요 연구 대상으로 삼았다. 첫 번째는 나까다(中田薰) 선생의 출생ㆍ성장 배경과 그의 저작을 통해 알 수 있는 법률 사상이다. 나까다(中田薰) 선생은 일본 메이지 유신 중후기에 출생하였고, 소년 시절 교육과 성장 경력은 메이지 유신의 영향을 많이 받았으며, 많은 근현대 국가의 사상을 수용하였다. 메이지 유신 기간 동안, 일본 사회는 도쿠가와 막부의 봉건 통치가 근대 사회로 전향하는 관건적인 시기였다. 문화적 시각에서 분석하면, 일본은 이런 급속한 사회 전환에 적응하기 위해서, 주자학 전통에서 서방의 정치사상과 국가 이론으로 전향하였다. 일본은 서방 문화를 흡수하는 과정에서 많은 곡절과 복잡한 과정이 있었고, 그 중 적지 않은 사상가들이 이 문제에 대해 게임과 토론을 하였다. 서방의 관점에 대한 일본인 최초의 변화 역시 선진 과학기술 학습으로부터 나왔으며, 그 후에 비로소 이데올로기와 사상 문화를 수용하였다. 나까다(中田薰) 선생은 이런 장기간의 사상쟁명 시대에서 성장했고, 그 사상도 메이지 유신 시기 사회사조의 영향을 받았다. 그는 고대 선례를 기초로 하는 연구 방법을 채용하였고, 풍부한 연구 자료를 기초로 일본 법률사 연구를 진행하였다. 나까다(中田薰) 선생의 일본 법률사ㆍ비교법률사에 대한 연구 성과는 훗날 일본 법률사학의 발전에 견고한 기초를 다졌다. 연구 방법에서, 나까다(中田薰) 선생은 일본과 독일ㆍ프랑스ㆍ영국을 비교하였는데, 이로써 그의 연구 특색을 형성하였다. 둘째, 일본 법률사학과 초창기 시기의 공헌을 중심으로, 나까다(中田薰) 선생의 법률 사상과 그가 양성한 많은 제자들이 훗날 일본 법률사학계에 기여한 역할을 살펴보았다. 나까다(中田薰) 선생은 미야자키 미치사브로(宮崎道三郞) 선생을 스승으로 삼고, 주로 일본 법률사와 비교법률사를 학습하였으며, 동시에 법률사에 대한 흥미도 몽테스키웨의 삼권분립 사상과 지리결정론 사상의 영향을 받았다. 일본 법률사가 일개 학과로서 연구가 진행된 것은 동경제국대학의 미야자키 미치사브로(宮崎道三郞) 선생부터였다. 그는 유럽 법률사를 법률사학 연구 범위로 도입하고 일본 법률사의 기초를 다졌으나, 미야자키 미치사브로(宮崎道三郞) 선생의 주요 연구 범위는 헤이안 시대였다. 도쿠가와 시대를 연구 중점으로 삼고, 아울러 건전한 연구체계를 구축한 분은 나까다(中田薰) 선생인데, 이는 당시 일본 비교법학계의 독창적인 의의가 있었다 나까다(中田薰) 선생은 훗날 학술 생애에서 일본 법률사학의 발전을 위하여 많은 인재를 양성하였으며, 특히 문하 6대 제자가 가장 특출하다. 그들은 각각 일본 법률사를 전공한 가네다 헤이이치로(金田平一郞), 다카야나기 신조(高柳眞三), 이시이 료스케(石井良助), 하라다 케이키치(原田慶吉), 구보 마사하타(久保正幡), 니이다 노보루(仁井田陞)이고, 법률사의 각개 영역을 포괄하고 있다. 지금에 와서 보면, 이들 학자들은 이미 일본 법률사학과 건립에 중요한 추진체였다는 점을 알 수 있다.

한국 로스쿨(법학전문대학원)제도의 개선방안에 관한 연구-일본 로스쿨(법과대학원)제도의 운영 경험을 중심으로-

곽창신 단국대학교 법학연구소 2013 법학논총 Vol.37 No.4

Both Korean and Japanese Government decided to introduce the ‘law school system’ for reforming the long-debated problems such as the education system in the college of law, the bar-examination and the training system of the future legal professionals. While Korean government approved only small number of law schools by establishing the high criteria which were very difficult to reach. Japanese government approved many law schools if they passed the certain low criteria which were very easy to meet. Twenty-five law schools with 2,000 students in Korea started in March of 2009, while sixty-eight law schools with 5,600 students in Japan started in April of 2004. There are many similarities between Korean law school system and that of Japanese in that two systems are one of modified American-style law school. However, we can find more differences than we think, if we compare them in detail. During the five-year-experiences of operation, Korean law schools found some problems. We can separate the problems of Korean law school into two categories. One group of problems is short-term problems which are necessary for the soft landing of Korean law school system. The other group of problems is fundamental problems including the assertion of abolition of law school system itself. Short-term problems of Korean law schools are as follows, excessive financial burden of students because of expensive tuition, abnormal operation phenomena of law school curriculum because of the over-heated competition for good GPA and for the preparation of bar-examination, the criticism on the lack of law-related knowledge of law school graduates because of the shortage of learning time within 3 years of law school system, serious financial difficulties of each law school, the serious difficulties in finding the lawyer-jobs for the law school graduates and so on. From the opening of law school system, Japanese law schools have been in difficult situation because of fundamental problems such as imbalance between the number of law school(students) and number of successful applicants in Japanese Bar-examination. For example, only 26.8%(2,049) of applicants(7,653) could pass the Japanese Bar-exam. in 2013. Because of the above-mentioned problems, Japanese law schools have suffered from the shortage of applicant in entrance examination. In 2013, 64 law schools(93%) could not fill the entrance exam. quota of each law school, and only 2,698 students(63%) entered 69 law schools with the total quota of 4,261 students. The on-going process of reforming the Japanese law schools could be expected from the start of law school system. And the problems of Japanese law schools have been deteriorating from the opening year. Finally in August of 2012 the Central Government of Japan decided to establish ‘Committee of Ministers for the Reform of the Legal Professionals’ Education and Training’. And it was expected to finalize its duty in August of 2013. The Committee disclosed its final report in July 16th of 2013. According to the report, the Committee decided to maintain the current law school system for the time being. It decided to reform some easy problems of law school system, however it delayed its final decision regarding the difficult tasks such as the optimum number of lawyers in Japan in the future, the methods of reforming the low-performance law schools, preliminary-exam. system for the regular bar-exam.Japanese Government decided to create and operate the new special Committee composed of 6 related-Ministers and the Advisory Group composed of experts under its jurisdiction. The newly established Committee will deal with the fundamental reform of the Japanese law school systems including the fore-mentioned difficult tasks. The new Committee was established in September of 2013 and it will last for 2 years. From the lessons of the Japanese law school reform experience, there can be two approaches for Korean law schools. In the short term, Korean ...

일본 개정민법상의 계약부적합 개념과 책임에 관한 고찰

송영민 민사법의 이론과 실무학회 2019 民事法理論과 實務 Vol.22 No.3

This treatise examines contractual incongruity concept and the right to enforce conforming performance of contractual incongruity liability in trade of Japanese revised civil law effective April 2020. Japanese revised civil law basically amended the regulation about defect warranty liability of seller including establishment of regulation about contractual incongruity liability of seller in trade contract. The rough comparison on the relation with Korean civil law(property law) revision draft is as follows. ① Legal characteristic of defect warranty liability is equal to Japanese revised civil law regarding default liability theory. ② Japanese revised civil law introduced new concept called 「contractual incongruity」, deleting 「defect」 concept in defect warranty liability. The liability of seller on contractual incongruity unified as default liability irrespective of default type(default liability of incongruity benefit). In addition, defect warranty liability regulation of subcontract was deleted, and simultaneously trade regulation was completely applied to subcontract. These are different points from Korean civil law revision draft. ③ The opinions between two countries are basically same in legislation and legal characteristic of the right to enforce conforming performance. ④ Korean civil law revision draft prescribes the position of right to enforce conforming performance as one of the general relief measures of default, on the other hand, Japanese revised civil law prescribes it in trade part. ⑤ Japanese revised civil law admitted the superiority of subsequent completion in relationship between the right to enforce conforming performance and the claim for damages, on the other hand, there is no regulation about it in Korean civil law revision draft. In conclusion, there is certain gap between two countries in basic direction of revision. Korean civil law revision draft reflects theories and precedents maintaining the phenomenon, but Japanese revised civil law reflects theories and precedents through the revision. In this regard, the systematic comparative review should be needed in Korean civil law and Japanese civil law. 본 논문은 2020년 4월 시행되는 일본개정민법상의 매매에서의 계약부적합 개념과 계약부적합 책임 중 추완청구권에 관한 부분을 검토한 것이다. 일본개정민법은 매매계약에서 매도인의 계약부적합 책임에 관한 규정을 신설하는 등 종래 매도인의 하자담보책임에 관한 규정을 근본적으로 개정한 것이다. 2014년에 확정발표된 우리민법(재산법)개정시안과의 관계를 개략적으로 비교검토하면 아래와 같다. ① 하자담보책임의 법적 성질에 관해서는 채무불이행책임설로 본 일본개정민법과 동일하다. ② 일본개정민법은 하자담보책임법상의 「하자」개념을 삭제하고 그 대신 「계약부적합」이라는 새로운 개념을 도입하였다. 계약부적합에 대한 매도인의 책임은 불이행의 유형을 불문하고 채무불이행책임으로 일원화하였다(부적합급부의 채무불이행 책임화). 그리고 도급계약 고유의 하자담보책임 규정을 삭제함과 동시에 매매규정을 도급에 전면적 적용하였다. 이들은 우리민법개정시안과의 상이점이다. ③ 추완청구권의 입법화와 법적 성질론에서는 기본적으로 양 국가의 견해가 일치하고 있다. ④ 추완청구권 규정 위치에 대하여 우리민법개정시안은 채무불이행의 일반적 구제수단의 하나로 규정하고 있는 반면에, 일본개정민법은 매매 편에서 규정하고 있는 점에서 차이가 있다. ⑤ 추완청구권과 손해배상청구권과의 관계에 대하여 일본개정민법은 추완의 우월성은 인정하고 있다. 반면에 우리민법개정시안에는 이에 대한 규정이 없다. 결론적으로 위의 비교검토에서도 개략적으로 나타나듯이, 양 국가는 개정의 기본적 방향성에서 일정한 차이가 있다. 우리민법개정시안은 큰 틀에서는 현상을 유지하면서 학설과 판례를 반영한 개정이지만, 일본개정민법은 큰 틀에서의 개정을 통하여 학설과 판례를 반영한 입장이라 할 것이다. 앞으로 우리민법과 일본민법의 체계적인 비교법적 검토가 필요할 것으로 보인다.

日本民法의 現代化

鄭鍾休(Jeong Jong-Hyu) 부산대학교 법학연구소 2007 법학연구 Vol.48 No.1

(1) 世界의 法秋序는 現代化의 파도에 싸여 있다. 사회생활의 기본법으로서의 민법은 끝없이 현대화를 요구받고 있다. 이웃 나라 日本의 民法은 이러한 신법전편찬 시대의 民法 現代化에 좋은 예를 제공한다. "民法의 現代化”란 무엇일까? 그것은 "社會生活의 基本法으로서의 民法”이 사회적 변화에 따른 요구에 응하기 위한 자기 변화라 할 수 있다. (2) 본고는 19세기말 일본 민법전이 제정된 이후 민법전 자체와 기타 민법 규범들이 어떻게 현대화의 요구에 응해 왔는지를 비교적 최근의 변화에 중점을 두고 추적한 것이다. 일본 민법전은 제정 이래 2차대전후의 가족법에 관한 대개정 외에는 비교적 최근까지 이렇다 할 큰 개정을 경험하지 않았다. 그러나 1990년대에 들어 민사입법의 움직임은 매우 활발해져, 종래의 기본적인 사고방식의 전환을 촉구하는 다수의 법률이 제정되었다. (3) 본고는 일본에는 한국과 같이 판덱텐식 5편으로 된 민법전임에도 재산편과 가족편이 별개의 법률로 되어 있었다는 것, 그 중 가족편은 2차대전 후 새 헌법의 제정과 더불어 대폭 개정되면서 언어 표현적인 손질까지 마쳤다는 것, 그에 반해 재산편은 최근까지 갖가지 손질을 거쳤으면서도 언어 형식면에서는 19세기말 제정당시의 "카타카나문어체" 방식을 유지했다는 것, 1990년대에 들어와 더욱 활발해진 알기 쉬운 민법전에 대한 국민적 요구가 2004년 "現代語化法”으로 결실이 되었다는 것, 그것은 "현대어화”속의 "현대화”라기 보다는 "현대화”속의 "현대어화”라 해야 할 것이라는 것, 그 구체적인 모습을 언어 형식과 내용면에서 고찰하였다. (4) 2004년 일본민법 현대화법은 형식적인 면에서의 민법전에 대폭적인 변화를 가져왔다. 재산편과 가족편을 통합한 단일법전화, 편장 구성과 조문번호의 손질, 조문 제목의 신설, 법제기술상의 정리, 각종 정의규정의 신설, 풀이와 함께하는 법률용어 표기, 문어체에서 구어체로, 법률용어의 명확화와 평이화, 보충에 의한 의미의 명확화, 옛표현의 현대어화, 등이 그러하다. 이와 더불어 보증계약의 요식화를 포함하여, 조문내용이 실질적으로 바뀐 부분이 있다. (5) 2004년 일본민법 현대어화법에는 근본적으로는 다음과 같은 문제점이 있다. 첫째는, 일본민법전의 현대어화 과정을 살피는 한, 판덱텐 시스템의 기능적 분산에 대한 고민이 없었다. 둘째는 민법전의 현대화 자체를 궁극적으로 정당화하는 시각이 보이지 않았다. 셋째는, 현재 계약법을 중심으로 한 채권법, 나아가 민법전 전반의 개정작업이 진행중임을 감안하면, 2004년 민법전 현대어화법이 언어적인 면만의 현대화로 일관되지 못한 것에 대한 의구심은 더욱 커질 수밖에 없다. (1) The global law system is riding the tide called "mordernization." Even if we consider the law system by limiting it to the civil law or the general private law, we can find that such civil law as the basic law of social life is forced to continue the modernization in the face of the changes of cultural and techNoogical circumstances such as the IT development, the globalization in the economical conditions or the potential way of thinking, the dissemination of global criteria, the development of bio-genetic or medical techNoogy, the overall consumer protection, the respect of self-determination, and the requirement of diversification. Such change was beyond the bounds of conception in the "era of codification" which features the "Allgemeines Landrecht f?r die preussischen Staaten of 1794”, the French Civil Code of 1804, the Austrian Civil Code of 1812 and the German Civil Code of 1896. I interpret that the legislative history is now facing the "new era of codification." The Japanese Civil Code is showing a good example of modernization of civil law in the "new era of codification." Then what is the modernization of civil law? It can be defined as self-change for the civil law, as the basic law of social life, to make efforts to adjust itself to the social transition. (2) This article will examine the relatively recent trend of how the Japanese Civil Code and other civil regulations have reacted to the requirement of modernization since its codification in the late 19 century. Relatively speaking, until recently, since the codification, the Japanese Civil Code has not had overall revision other than in the field of family law after the Second World War. However, the Japanese society has remarkably changed, which has lead to many unexpected problems. Nonetheless, the Japanese Civil Code has not gone through great revisions because case laws have had the possibility to complement the Civil Code and some special civil regulations have been enacted in order to complement and modify the Civil Code. With some active efforts in the field of civil law in the 1990s, some regulations were established to encourage the transition of the basic way of thinking about the Civil Code. (3) This article looks into the specific aspects of the Japanese Civil Code from the perspective of language and contents. The Code consists of property part and family part respectively in spite that it consists of five parts following the "Pandekten" law system like the Korean Civil Code. The linguistic expression of the family part of the Japanese Civil Code was altered at its great revision with the establishment of the new Constitution after the second World War, whereas the property part has altered in various ways up to recently, bur it adheres to "the Katakana literary style" in the linguistic form whose style was formed in its first codification in the late 19 century, However, people’s requirement for the easily understood Civil Code ("Hiragana style”) in the 1990s bore fruit into "the Modernized Language Aa" in 2004. It should be understood as "linguistic modernization" in "modernization" rather than "modernization" in "linguistic modernization”. (4) The modernized Japanese Civil Code of 2004 has brought various changes to the pre-existing Code in the formal aspect: the unit codification combining the property part and the family part, the rearrangement of chapters and articles, the establishment of the heading of articles, the technical arrangement of legislation, the establishment of various definition provisions, the inscription of legal terms with explanation, the change of language from written style to spoken style, the clarification and simplification of legal terms, the clarification of meaning by the way of supplementation, and the modernization of old expressions and so on. With the changes, some provisions lead to substantial changes of the contents. For example, a guaranteed contract has turned into a formal contract and a f

개정 일본민법에서의 채무불이행법체계

김철수 강원대학교 비교법학연구소 2022 江原法學 Vol.69 No.-

This paper aims to review the contents of the recently revised Japanese Civil Law in relation to the system of non-performance of obligation. Thus, in this paper, the system of non-performance of obligation, the rescission of contract, and the seller’s liability for warranty were reviewed. The summary of this paper is as follows. First, the Revised Japanese Civil Law requires that the obligor fails to effect performance in accordance with the original purpose of obligation as a basic requirement in relation to the non-performance of obligation. In addition, the Revised Japanese Civil Law stipulates that the reason for obligor’s liability, which is one of the requirements of liability for non-performance of obligation, is judged in light of the contract and common notion of society in the transaction, not by the intention or negligence of the obligor. And in relation to the extent of demand for damages caused by non-performance of obligation, the Revised Japanese Civil Law changed the expression that the party had foresee or could have foreseen to more normative expression by modifying it to the expression that the party should have been foreseeable. Second, in relation to the rescission of contract, the Revised Japanese Civil Law redefined the provisions on the rescission of contract by dividing it into the rescission by notice and the rescission not by notice. Regulations on the rescission by notice are general regulations on the rescission due to non-performance of obligation, and not only the delay of performance but also the incomplete performance are handled under these regulations. And the rescission not by notice is done without notice in the case of impossibility of performance, in case of periodic acts, and refusal to perform. And as a requirement for the rescission of contract, the reason for obligor’s liability is not required. Third, regarding the seller’s liability for warranty, the Revised Japanese Civil Law changed the seller’s liability for warranty against defect as the liability for contractual inconsistency of goods, and the general principle of non-performance of obligation is applied. In addition, in case of the contractual inconsistency of rights, the provisions on the contractual inconsistency of goods are applied mutatis mutandis. As a result, both of the seller’s liability for warranty has been changed to the liability of non-performance of obligation. Fourth, the revision of the legal system of non-performance of obligation in the Japanese Civil Law suggests the following points. First, regarding the requirement of liability for non-performance of obligation, the Revised Japanese Civil Law stipulates that the reason for obligor’s liability is judged in light of the contract and common notion of society in the transaction. I think that the discussion surrounding this point is worth a sufficient reference in the revision of the Korean Civil Law. In addition, the Revised Japanese Civil Law stipulates that if non-performance of obligation is minor in case of the rescission by notice, the right of rescission dose not generate. Although the revision of the Korean Civil Law in 2013 has similar regulations, it also requires additional requirements that the non-performance of obligation will be insignificant and that the purpose of contract will not be hindered. I think that further review is necessary for this point. The Revised Japanese Civil Law restructured the seller’s liability for warranty as the liability for contractual inconsistency from the viewpoint of the liability of non-performance of obligation. It is expected that the Korean Civil Law will be revised as soon as possible. 본고는 개정 일본민법에서의 채무불이행법체계에 대하여 검토하는 것을 그 목적으로 한다. 이를 위하여 제2장에서는 채무불이행으로 인한 손해배상, 제3장에서는 계약의 해제, 제4장에서는 매도인의 담보책임에 대하여 검토하였으며, 제5장에서는 결론을 맺었다. 본고에서의 검토결과를 요약하면 다음과 같다. 첫째, 개정 일본민법은 “채무의 본지에 따른 이행이 없는 때”라고 하는 것을 채무불이행의 기본적 구성요건으로 하고 있다. 또한 채무불이행의 요건의 하나인 귀책사유에 대하여는, 이것을 채무자의 고의 또는 과실로 파악하지 않고, 계약과 사회통념에 비추어 판단하는 것으로 한다. 그리고 채무불이행으로 인한 손해배상범위와 관련하여 개정 일본민법은 “예견하거나 또는 예견할 수 있었던 때”의 문언을 “예견하였어야 했을 때”로 수정하여 보다 규범적인 표현으로 바꾸었다. 둘째, 개정 일본민법은 계약해제의 규정을 ‘최고에 의한 해제’와 ‘최고에 의하지 않은 해제’로 나누어 재구성하였다. 최고해제는 채무불이행 해제에 관한 일반적인 규정으로서 이행지체는 물론이고 불완전이행의 경우도 이 규정에 의하여 처리된다. 그리고 무최고해제는 최고해제의 원칙에 대한 예외로서, 이행불능, 정기행위, 이행거절 등의 경우에는 최고 없이 해제할 수 있다고 규정한다. 그리고 계약해제의 요건으로서 채무자의 귀책사유는 요구하지 않는다. 셋째, 매도인의 담보책임과 관련하여 개정 일본민법은, 하자담보책임을 물건의 계약부적합에 대한 책임으로 수정하여 원칙적으로 채무불이행에 관한 일반원칙이 적용되는 것으로 하였다. 또한 권리의 계약부적합의 경우에도 물건의 계약부적합에 관한 규정을 준용함으로써, 매도인의 계약부적합에 대한 책임은 모두 채무불이행책임인 것으로 변경되게 되었다. 넷째, 개정 일본민법상의 채무불이행법체계의 개정이 우리 민법에 시사하는 점은 다음과 같다. 먼저 개정 일본민법은 채무불이행책임의 요건인 채무자의 귀책사유를 계약과 거래상의 사회통념에 비추어 판단한다고 규정하고 있는데, 이 점과 관련한 논의는 우리 민법에서도 충분히 참고할만한 가치가 있다고 생각한다. 또한 개정 일본민법은 최고해제의 경우에 채무불이행이 경미한 때에는 해제권이 발생하지 않는 것으로 규정하고 있다. 2013년의 법무부의 민법개정시안에서도 이와 유사한 규정을 두고 있지만, 우리 민법개정시안에서는 채무불이행이 경미한 것 외에, 계약의 목적달성에 지장이 없을 것이라는 요건도 추가적으로 요구하고 있는 점에서 차이가 있다. 이 점에 대하여 재검토가 필요한 것으로 생각한다. 그리고 개정 일본민법은 매도인의 담보책임을 채무불이행책임으로 파악하는 입장에서 매도인의 담보책임을 계약부적합에 대한 책임으로 재구성하였는데, 우리 민법개정시안에서는 이 부분에 대한 개정을 포함시키지 못하였다.

군형법 제정의 역사적 배경과 관련 문제점

박안서(Park, An-seo) 국방부 군사편찬연구소 2012 군사 Vol.- No.82

Features of The Korean Military Criminal Law are connected with the korean modern history. The Korean Military Criminal Law was enacted by National Reconstruction Commission (not the National Assembly) in 1962. The forms, legal terms, crimes and penalties of the Korean Military Criminal Law are similar to the old Japanese Military Criminal Law. So we can see that The Korean Military Criminal Law has mainly roots in the Japanese Military Criminal Law of 1942. The Japanese Military Criminal Law of 1942 had the features of severe punishments, commander"s absolute liability, subordinates"s absolute obedience to senior. Because Imperial Japanese Army unreasonably waged aggressive wars against many countries and Imperial Japanese Army"s soldiers are absolutely forced to obey to the emperor, so the Law is aiming to establishing the strict discipline.Thus there are many capital punishments, life imprisonments, 10 years imprisonments in the Japanese Military Criminal Law of 1942. And in 1950~1953, the Republic of Korea suffered from the Korean War. The war influenced the revision of Korean Military Criminal Law. As a result, the Korean Military Criminal Law is more severe than the Japanese Military Criminal Law of 1942. The Korean Military Criminal Law is revised 14 times after enactment. But the law wasn"t changed much,so the law has same features and problems of Japanese Military Criminal Law of 1942. The Korean Military Criminal Law has been brought before the Constitutional Court several times. Besides, Many scholars criticize severe punishments, conflicts with human rights and indefiniteness of the law. They stress that the law violates the principle of nulla poena sige lege. Therefore we need to consider the law"s fundamental revision now.