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相隣性 立法에 관한 硏究 : 現行慣習調査를 中心으로 with a Particular Reference to the Existing Custom
金龍熙 건국대학교 1970 學術誌 Vol.11 No.1
The corpulency of ownership which has a primary importance among the rights of real things not only infringes the principle of public welfare but also results physical conflicts among the ownerships of adjacent real estates. When the positive law does not regulate it properly a fair exercise of ones rights by individual owner can not be expected. Therefore, various types of law were induced to limit the scope of ownership as Korean Constitution and Civil Code have done so. Korean Civil Code acknowledges the vertical limitation of ownership and its Articles 215 and 244 govern the relations of right between owners of adjacent estates to guarrantee fair exercises of the ownership on land. It is called the Neighborhood (Relation between Neighbors) and the Neighbor-right is based on the neighborhood. And the expansion and limitation of the scope of land ownership can be emphasized as main contents of neigh-borhood. The Korean Civil Code was amended more rationally than older one to render it more suitable to Korean Law consciousness. In order to find out the rationality and validity of this reasonably amended Civil Code effectuated more than 10 years ago, the author investigated current custom in Seoul, Koonsan, Keumsan, Moojou, Uljin and Yungwol districts. The positive law is as effective as it was originally intended when legislated. However, due to the fast revolving society wide gaps between the solid positive law and actual settlement of neighborhood problems are continuously formed with latter becoming more and more important. With a few exceptions, the results of present investigation are in accordance with the existing rules of Civil Code. Particularly noteworthy is that the contents of neighborhood have been expanded from adjacent lands to buldings and from rural to urban communities. Housing scarcity caused by popular movement into large cities and national population increase has been closed up to modern society as a nightmare. One way of solutions of housing problems is the construction of multiple units apartment. Such a tendency naturally causes expansion and development of neighborhood legislation into co-ownership. Such a phenomenon is found out not only in co-ownership of land but also in deep-digging of lands, screen facilities, the right of building construction on the boundary line of adjacent land installation of water and electricity facilities both, essential to modern urban life. As the traditional neighborhood based mainly on land gradually shifts its importance to "residing" life neighborhood on residence gains its moment qualitatively as well as quantitatively. The neighborhood developes faster than ever before and this development is gradually changed into custom. Therefore, future legislation of neighborhood must be preceded by and based on scientific investigation of social custom. It must be adoptable to the demands of citizens and to the Korean law-consciousness.
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金龍熙 건국대학교 1977 學術誌 Vol.21 No.1
A legal technique by a cotort has gradually implied the modernized meaning according to the new types of dispute as the social life changes. The development of the organizations of the traffic and communications in a great quantities enterprises, moreover, the constant urbanization have brought us the cross social contact rapidprogressively. As a result, the types of damages caused in social life have been complicated and diversified and it is, therfore, substantially possible for us to claim damages from many persons who committed a cotort through the application of the legal technique to be called a cotort. On connection with the new types of damages subsequent to pollution and traffic accidents, a discussion has actively been conducted on a cotort and this reflects nothing but such social back-ground. Nontheless, the concept itself of a cotort is not clear now. For example, some of scholars have maintained that be individual act of a cotort feasors independently meets the requisites of tort as the requisites of a cotort, however, according to such interpretation, a cotort means the case simply when a independent tort caused jointly. If so, a question arises in the reason of the provision of § 760 which prescribes a cotort with the exception of §750 of Civil Code. This question makes the start-point of this study Therefore, in order to solve this question, writer desires to clarify the contents of a cotort through the concept of causality in a cotort. Especially, since this question should be solved by the concept of causality which has the diversified significance innate in it, firstly the concept of causality must be established as a tool-concept for solving eleborate the subject-matter and them the work has been tried for the definition of a cotort act and its typification. Further, the conventional theory on the requisites and the judicial precedents on cotort have been reorganized for concluding the subject-matter.
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