독일법상의 경계확정소송

이춘원,Lee, Choon-Won 한국국토정보공사 공간정보연구원 2014 지적과 국토정보 Vol.44 No.1

There is no provision regarding the 'litigation on land boundary' under the Korean laws. Therefore, there are disputes in theory with respect to its nature, requirements for litigation, criteria for determination, etc., and it is necessary to establish the provisions of the law on this issue in the future. For this legislation, it is necessary to conduct a comparative consideration on laws of other countries which have completed the relevant provisions. This study, as a first step, researches a history of litigation for determination of boundary under the Roman law and medieval law, and furthermore introduces the German law which has relatively completed legal provisions on litigation for determination of boundary. In addition to common ownership litigation, the German law has established a provision on litigation for boundary as a judicial procedure considering a special place, called as a dispute on ownership of adjacent land, on the assumption that it is difficult or impossible to prove the boundary. The primary purpose of this litigation is to clarify a true boundary, and if such clarification is impossible, a boundary is discretionally created in accordance with the statutory standards under Article 920 of the German Civil Act (BGB). It means creation of the scope of land ownership by operation of decision, not only by the 'discovery of original boundary'. Both cases are different from each other in the aspect of judicial decision, but embracing them into one is a lawsuit for determination of boundary under the German law. Under the Korean legislation, it is necessary to make a theory containing two different criteria for determination into a single type of litigation, considering such aspects.

지목분류체계에 관한 연구

이춘원,김진,Lee, Choon-Won,Kim, Jin 한국국토정보공사 공간정보연구원 2015 지적과 국토정보 Vol.45 No.1

In the past, the main function of land use categorization was merely used for basic data for taxation purpose, but recently land use categorization is used as important reference data in various ways, including administrative affairs, national land plan, land development, city maintenance as well as private transactions of land, in addition to the provision for assessment data. In the future, it can be expected to broaden its own functions. For expansion of the function of land use, we need to reconsider categories of land use from a perspective of individual laws and regulations actually regulating land use from a perspective of demand. In order to resolve any discrepancy between actual land use and land use on official books, the ultimate method of resolution is to study the current state of actual use of land and reflect them on official books, but it is also necessary to prevent any confusion of national people by unifying various categories of land adopted by the regulatory acts related to land. In addition, if the same administrative regulations are applied to different land use under the current laws, it is necessary to include them in the land of the same category. This study proposes to establish a new category for securing systematic consistency of the current categories of land use under the integrated cadastral act with other land laws and regulations.

외국어로 된 약관의 규제에 대한 소고

이춘원(Lee, Choon Won) 성균관대학교 법학연구소 2009 성균관법학 Vol.21 No.3

Along with the trend of active globalization today, more and more transactions between different countries take place where the mother tongue languages between the companies and consumers differ from each other, resulting in the preparation of agreements in a language that is other than the mother tongue language of the consumers. In particular, as the foreign companies without any separate entity in Korea usually induce the execution of agreements by referring to the clauses in their mother tongue languages, the question of whether such clauses in foreign languages may form a part of the agreement shall be given consideration, while another question rises when a foreigner executes an agreement in Korea, the language used in the clauses would not be the mother tongue for such party to the agreement, and hence there would be difficulties in easily understanding the content of such clauses. In this line, the issue of how to protect consumers from the clauses prepared in a language other than the mother tongue of such consumers shall be given consideration. In this study, the regulation by the Control Act on General Clauses of Korea shall be closely considered by referring to how such issues are dealt in Anglo-American law and German law. In Anglo-American law, there is a basic legal principle of respecting signature, whereas in principle, the customer trading with a company is deemed to bear the risk from the language in case of agreements in foreign languages which may have been evolved from the individualism that flows throughout Anglo-American law, although there are some exceptions. In comparison, the precedents before the enactment of the Control Act on General Clauses in Germany were composed in the direction of protecting its own nationals with the influence of nationalism. Yet, after the enactment of the Control Act on General Clauses, at the execution of agreement in accordance with Article 2, Paragraph 1 of the Control Act on General Clauses, the direction has taken its turn to the issue of whether the designation of statement (or in some cases, notice) and the pre-requisite on the possibility of recognizing the content of the clauses is satisfied, resulting in the designation in accordance with the language in negotiation and the preparation of clauses in the same language was requested in principle. Provided however, while this legal principle is neutralized over the trades between commercial parties, such neutralization is limited to the use of foreign languages, and therefore, may be applied to all other cases. On the other hand, the Control Act on General Clauses of Korea does not provide any provisions over the control of clauses in foreign languages. However, in the revision of the Control Act on General Clauses on August 3, 2007, Article 3, Paragraph 1 was newly inserted, where it was provided that the clauses were mandated to be prepared in Korea, yet it is very difficult to consider this as a provision to regulate the clauses in foreign languages. Therefore, not only the clauses prepared by the foreign company in foreign languages, but whether the clauses prepared by the Korean domestic company in foreign language also forms a part of the agreement shall be determined by whether the requisites under Article 3, Paragraphs 2 and 3 of the Control Act on General Clauses are satisfied or not. Considering Article 3, Paragraphs 2 and 3 of the Control Act on General Clauses, in order to permit the clauses to form a part of an agreement, "the contents of the clauses shall be stated to the customers in generally expected method in accordance with the type of agreement", while "copies of the said clauses shall be provided to the customers in accordance with the requests of the customers" and "significant details shall be fully explained to the customers for their understanding." In relation to the statement of clauses, the term "statement" is provided where "the company shall permit his/her customers

건설공사에서 하도급 대금의 담보에 관한 일고찰 - 미국의 Mechanics" and Materialmen"s Lien의 소개

이춘원(Lee Choon Won) 성균관대학교 법학연구소 2007 성균관법학 Vol.19 No.3S

  In the construction work, the realistic loan security system is needed for subcontractor to ensure construction bonds. However, undertaking a construction contract. it is quite difficult for subcontractors to demand a loan securityof a contractor realistically. Therefore, ensuring the Construction Bonds in undertaking a contract, the establishment of real rights granted by way of security in law makes it easier to ensure such bonds. The civil law says allocatees can request the settlement of a mortgage or a lien as a way of ensuring construction loans under Article 666, but this system rarely has an effect as a way of ensuring subcontractors bonds. In relation to ensure construction loans lor subcontractors, there is a system called Mechanics" and Materialmen"s Lien in America and this is evaluated as the effective system. In this thesis, there"s an introduction about the American system ensuring construction loans. Mechanics" and Materialmen"s Lien.<BR>  Mechanics" and Materialmen"s Lienin America offers any person who supplied improvement of real estate, labor, service and material but didn"t get paid a right to get what is owed before any other creditors. M and M lien, as a Lien established by a statute of law. is realized on the improved real estate.<BR>  The purpose of M and M lien is basically to protect subcontractors or material supplier and it needs to control the interests among the owner, real estate security lender, buyer, whose interests are against each other.<BR>  Like a Pennsylvania system, if the owner is responsible for lien of a person who"s not in related of contract directly in spite of paying offthe construction bill, the owner has a risk of duplicate payment. Therefore, the owner"s M and M lien"s range of responsibility needs to be limited.<BR>  In the state of Tennessee, mechanics lien for the residential property occurs to the original allocatees who are in relation of a direct contract with the owner of the property but doesn"t occur to subcontractors, material suppliers, etc, who aren"t in direct contract relationship. The background of this limit is the political consideration to protect homeowners who might not have enough expert knowledge.<BR>  In the state of lowa, if the owner doesn"t occupya real estate for residential purpose. they follow the Pennsylvania system and if the owner does f?r residential purpose, they follow the New York system.<BR>  In the state of Nebraska, the homeowner"s lien and its range of responsibility is limited to the original allocatee from the time when the owner is notified of the responsibility of lien from an obligee of lien and the deposit unpaid in the contract with the owner.<BR>  In the state of Michigan, they protect the homeowners with the arrangedfund. In other words. to avoid the owner"s duplicate payment. "Homeowner Construction Lien Recovery Fund" was created.<BR>  Like above, America"s M and M lien deals with the control of interests between subcontractors alike and the owner, contractor, subcontractor, a creditor of a building fund, a grantee of real estate and it is affected by the political situation of the state, varying its contents.<BR>  America"s M and M lien can be focused on the point that it is a security f?r Construction Bonds but specifically, what kind of social & legal problems there are, also what kind of discussion is being carried out for the solution, and how it is functioning in reality need to be clarified more hereafter.

계약에 있어서 언어의 위험부담에 관한 소고

이춘원(Lee Choon Won) 성균관대학교 법학연구소 2007 성균관법학 Vol.19 No.2

농지 관리 법제의 동향과 개선 과제

이춘원 ( Lee Choon-won ) 고려대학교 법학연구원 2017 고려법학 Vol.0 No.84

과거 농경중심의 사회에서 농지는 생산의 원천으로서 매우 중요하였기 때문에, 농지의 소유 및 이용에 있어서 법적인 규제는 매우 강하였다. 그러나 산업구조가 변화하고 세계 경제가 급변하는 오늘날, 국가경쟁력의 제고라는 측면에서 국토의 효율적 이용 및 관리를 위한 국토의 역할에 대해서 다시금 검토하여야 하는 상황이다. 지금까지 우리나라 농지규제는 농업을 보호하고 지원한다는 명분하에 농지의 양적인 보존 및 농업의 양적인 확대 정책을 목적으로 하는 것이었다. 그러나 산업구조나 취업구조상 농업의 비중이 급격하게 감소되는 상황에서 농지의 양적 보존에만 급급한 농지규제는 농업생산성을 저하시키고 토지이용의 효율성을 저해할 수 있다. 농지 문제는 농업생산의 문제에서 끝나는 것이 아니라, 농촌의 토지 이용 나아가 전체적인 국토 이용 및 관리의 비효율 문제로 직결될 우려가 있는 것이다. 최근 정책기조가 농업 중심에서 농촌 중심으로 전환되고 있다. 그동안 농업 생산성에 집중되었던 정책적 관심이 영농인의 복지, 농촌지역 활성화 등으로 확대되고 있는 것이다. 이와 같은 중대한 정책 환경의 변화에 따라 농지를 활용한 국토이용의 효율화 방안에 대해서 보다 심도 있게 논의해야 할 필요성이 있게 되었다. 농지가 가지는 식량생산의 중요성을 간과해서는 안되지만, 국가의 발전을 위해서 효율적이고 합리적인 방법으로 경제활동을 할 수 있는 농지의 활용방안이 강구되어야 할 것이다. 농지규제는 기본적으로 정부의 농업정책 패러다임의 연장선상에 있다. 농지에 대한 관리는 `국토의 활용`과 `영농`이라는 2가지 관점에서 보아야 한다. 국토의 활용이라는 관점에서는 `도시적 활용`과 `농촌적 활용`의 조정이 문제된다. 이는 `농지전용(Diversion of Farmland)으로 지역산업을 육성하여 지역경제를 활성화하고 최종적으로 국민경제성장`과 `농업을 보호하여 식량자원의 확보`라는 2가지 목적간의 갈등이 야기될 소지가 있다. 영농이라는 관점에서 농지의 `소유`와 `이용`사이의 조절이 필요하다. 농지의 효율적인 이용을 막는 제약요인으로서 수익 지가(地價)와 실세지가 간의 괴리, 구조개선의 제약, 임대차의 확대, 이용주체들 간의 갈등, 지역자원 유실 등의 문제가 거론된다. 농지규제는 농업만의 문제가 아니라 국가 및 지방정부의 산업정책과도 깊은 관련을 가진다. 지속적이고도 급속한 농가인구 감소로 인해 농가 1호당 경지면적은 지속적으로 증가했음에도 불구하고 농가소득의 수준은 점차 도시지역에 비해 상대적으로 악화되어 가고 있다. 경쟁력이 떨어지는 농사를 지속할 이유가 없어 경작을 포기함에 따라 유휴 농지는 점차 증가하고 있다. 국토계획체계와 관련하여, 계획적이고 종합적인 관리를 위해 `국토의 계획 및 이용에 관한 법률(National Land Planning and Utilization Act)`이라는 단일법 체계로 전환을 꾀하였지만, 여전히 중복되는 법규의 문제로 농지의 효율적 관리기능이 미흡하다. 본 연구에서는 현재 논의되는 농지 관련 정책 및 국토의 계획 및 이용에 관한 법률, 농지법, 농어촌 정비법에서의 농지관련 규제를 살펴보고, 국토의 효율적 활용이라는 점에서 이를 극복할 수 있는 방안을 모색하였다. In the past agro-centered society, since farmland was very important as a source of production, legal restrictions on the possession and use of farmland were very strong. However, as the industrial structure has been changed and the global economy has been rapidly changed, it is necessary to review the role of the national territory for the efficient use and management of the national country in terms of enhancing national competitiveness. So far, the Korea`s agricultural regulations have been aimed at the quantitative conservation of farmland and the quantitative expansion of agriculture for protecting and supporting agriculture. However, in the situation where the proportion of agriculture is drastically reduced due to industrial structure and employment structure, farmland regulation, which has been limited only to the quantitative preservation of farmland, may deteriorate agricultural productivity and deteriorate efficiency of land use. The problem of farmland does not end with the problem of agricultural production, but it is directly connected with the inefficiency of the land use in rural areas as well as the overall land use and management. Recently, the policy trend is shifting from agricultural business to rural areas. The policy interest that has been focused on agricultural productivity has been expanding to welfare of farmer and the activation of rural area. As the policy environment has been significantly changed, it became necessary to discuss the efficiency of land use utilizing farmland more in depth. Although the importance of food production in farmland should not be overlooked, it is necessary to find out ways to utilize farmland for economic activities in an efficient and rational way for the development of the country. A regulation on farmland is basically an extension of the government`s agricultural policy paradigm. The management of farmland should be viewed from two viewpoints: `utilization of the land` and `farming`. From the perspective of utilization of the land, it is problematic to adjust `urban utilization` and `rural utilization`. This may lead to conflicts between the two objectives of `revitalizing the local economy and ultimately growing the national economy by promoting the local industry based in the diversion of farmland` and `securing food resources by protecting agricultural industry From the perspective of farming, it is necessary to control between "ownership" and "utilization" of farmland. As a constraint to prevent the efficient use of farmland, the problems such as gap between profit land value and actual land value, restraint of structural improvement, expansion of lease, conflict between users and loss of local resources are pointed out. Farmland regulation is not only a matter of agriculture but also of industrial policy of national and local governments. Despite the stead increase of the land area per farm household due to the continuous and rapid decrease of farm household population, the level of farm household income is gradually getting worse than that of urban area. Idle farmland is steadily increasing because farm households have no reason to continue uncompetitive farming and thus give up farming. Although it attempted to convert into a single legal system of the National Land Planning and Utilization Act for the planned and comprehensive management of the national land planning system, the efficiency of the management function remains insufficient due to the problem of overlapping regulations. In this study, I examine the agricultural land related policies and the National Land Planning and Utilization Act, the Farmland Act and the Rearrangement of Agricultural and Fishing Villages Act, and then find out a plan for overcoming problems from the perspective of the efficient utilization of national land.

부동산 경매에 있어서 유치권의 효력 범위에 관한 연구

이춘원(Lee, Choon Won) 한국부동산학회 2010 不動産學報 Vol.43 No.-

1. CONTENTS (1) RESEARCH OBJECTIVE Even though a lien under law has only effect of retention, the civil execution act takes on abernahmeprinzip with respect to a lien and thus practically, in the procedure of payment, a lien takes priority over a mortgage which was established before such lien. In order words, even though a lien was established against any object to be executed in the civil execution procedure, a mortgagee or other common creditor has no any restriction on execution of real property, but cannot take over real property obtained by a successful bid auction. Therefore, since it is equivalent to the effect of recognition of a lien holders as having top priority right of payment, a mortgagee who has pre-established security, or a creditor who has made a provisional attachment or attachment may encounter unexpected loss. In other to prevent such loss or damage, it is necessary to limit counterforce of a lien. (2) RESEARCH METHOD This study conduct a research in a method of legal interpretation theory through literature investigation and case analysis. (3) RESEARCH FINDINGS The reason that the civil execution law has adopted 'abernahmeprinzip' might be because it kept in mind in the concept of a lien as receivable increasing value of property. Therefore, it is necessary to take a different position on 'receivable embodying exchange value of property itself. In order words, since receivable for construction payment might contribute to the increase of the value of retained property, such receivable need to have a priority over pre-established mortgagee. However, since a lien for any receivable embodying exchange value, such as a right to claim a return of payment, has a similar nature to a mortgage, both are in the position of competition or contrast. 2. RESULTS Given the fact a lien us acknowledged for fairness, it is also necessary to determine whether counterforce of a lien can be acknowledged or not, in the aspect of fairness. In addition, through typical consideration, it is necessary to take a different positions between 'receivable increasing the value of property', such as receivable for construction payment, and 'receivable embodying exchange value of property itself. such as a right to claim a return of transaction payment. There is a case where it is permissible to claim a lien to a debtor but it is not permissible to claim a lien to persons other than a debtor. In such case, it is desirable to hand this issue by limiting the scope of parties who can claim a lien, rather than negating the establishment of a lien. This issue has been addressed in terms of 'correlation' as one of requirements of established of a lien, but is should be addressed in terms of the effective scope of a lien.

예부선 상황에서의 충돌에 관한 몇 가지 문제점

이춘원 ( Choon Won Lee ) 한국해법학회 2007 한국해법학회지 Vol.29 No.1

We do not believe that the theory of identification between the tug and tow can be accepted any longer, considering the rulings of the Devonshire by the House of Lords in the UK and the Hyesung c/w the Stellar by the Korean Supreme Court. Following these rulings, the tug and tow should be treated as being an entirely separate vessel in relation to the liability issue. Firstly, whether the tow will be liable for the negligence of the tug should be determined case-by-case depending on the fact whether the tow has/assumes the right/obligation to control or supervise the tug. Secondly, even assuming that the tow is in breach of its own obligation or the obligation of control/supervision of the tug, there is no ground to treat both vessels as being one in the global limitation proceedings. In particular, the limitation amount of the tug should be calculated only based on its own tonnage, not including the tonnage of the tow.

산지관리 법제의 현황과 개선과제

이춘원(Lee Choon won) 한국부동산법학회 2017 부동산법학 Vol.21 No.1

The government has changed mountains which became bare across the country after the liberation from Japan and the Korean War into ones filled with trees through afforestation policies. As a consequence, Korea is now credited as a world-class model nation that has succeeded in afforestation. However, mountainous districts have been managed mainly for preservation so far and have been only allowed to be restrictively used, which has kept mountainous districts from being systematically or comprehensively managed across the whole land. An increase in demand for urban land according to rapid urbanization continuously demands the need for efficient use and development of mountainous districts. Meanwhile, once mountainous districts are destroyed, the subsequent impact is so huge and it takes a long time to recover from such destroyed state; therefore, sustainable management is required to secure harmony between preservation and utilization. As the pursuit of “Green Growth” has recently become the interest of the times, the efficient use of mountainous districts based on sustainability has begun to be regarded as a critical task even in terms of territorial use and real estate policies. While afforestation was of great interest as a basic resource in the past industrial society, the area and range of forest administration is gradually expanded at the present day. Not only may every forest resource play a meaningful role as the country’s economic growth engine, but tangible and intangible asset values which forest resources can create are also increasing as never imagined. Considering such tangible and intangible values of forest administration, we need to historically examine the change in forest policy paradigms from macro perspectives in order to renew the perception of forests and to map a desirable future direction. It seems to be unreasonable to emphasize only forest preservation in Korea of which the territory is mostly covered with mountains; accordingly, “development and preservation” or “preservation through development” is needed. For sustainable development balancing between development and preservation, plans and policies for strategic land management are required. Like this, rapid environmental changes surrounding mountainous districts shed new light on mountainous districts, which have been just regarded as the areas to be preserved and have been only used fragmentarily, as new land resources. Furthermore, it is time to think about the establishment of new roles of mountainous districts as new land resources.

Common Law에서 신의성실의 원칙

이춘원(Lee Choon Won) 한국비교사법학회 2016 비교사법 Vol.23 No.3

오늘날, 국제화에 따라 국가 간의 FTA가 체결되고, 국제거래에서 법 통일을 도모하는 노력이 행해지고 있다. 그러한 흐름 속에서 신의성실(Good Faith)의 원칙은 중요한 논의의 대상의 하나이다. 로마법의 영향을 강하게 받은 Civil Law 국가들에서는 공통적으로 신의성실이 중요한 일반 원칙(doctrine)으로서 인식되고 있다. 그러나 게르만법에서 유래하는 전통적인 법 체제를 유지해 온 영국 등 Common Law 국가에서는 신의성실을 일반원칙으로 도입하는 데에 있어서 소극적이다. 영국에서도 한 때 신의성실이 일반원칙으로 승인될 가능성은 있었으나, 19세기에 유행하였던 경제자유주의의 영향으로 나타난 ‘매수인 위험부담주의(Caveat Emptor) 원칙’ 등으로 그 가능성이 소멸되어 버렸다. 계약상 성실하고 공정하게 행동하여야 할 일반적인 의무는 지지되지 않고 있다. 영국법에서 신의성실을 일반적 의무로 받아들이지 않는 것은, 권리에 대하여 전통적으로 매우 자유로운 접근을 하는 영향 때문이다. 영국 계약법은 대등하게 거래를 하는 매우 빈틈없는 상인사이의 대규모적인 상업거래에 초점을 맞추고 있는 것이다. 미국은 Common Law 법체계에 속하지만, ‘제2차 계약법 리스테이트멘트(American Law Institute’s Restatement(2d) of Contract 1981)’ 에서 모든 계약에서 당사자에게 신의성실의 의무를 부과하여 신의성실을 계약상 일반원칙으로 인정하고 있으며, ‘통일 상사법전(Uniform Commercial Code)’에서도 신의성실에 관한 규정을 두고 있다. 미국에서 신의성실은 계약상 묵시적인 의무로 다루어지며, 정의를 위한 것으로 인식되어 계약 당사자에게 부수적인 의무를 부과한다. 신의성실 의무는 계약 당사자의 의도를 존중하며 강제적이거나 차별을 폐지할 수도 있다. 신의칙은 채무불이행의 일반적인 기준으로 중요한 역할하며, 계약서에 표현되거나 명백한 것을 빙빙 둘러 교묘히 피하지 못하도록 한다. 본 논문에서는 신의성실에 대한 비교법적인 연구로서 Common Law 법제 하에서 신의성실에 관한 입장을 정리하여 소개하였다. Today, due to globalization, FTAs were executed between countries, and an effort to promote the unity of law in the international transaction has been made. In such trend, the principle of good faith is one of the important subjects for discussion. In the civil law countries that were strongly influenced by the Rome Law, it is common that the good faith is recognized as an important doctrine. However, the common law countries, including UK, that have maintained the traditional legal system derived from the Germanic Law, are passive in adopting the principle of good faith as a doctrine. In UK, there was a possibility that the principle of good faith would be accepted as a doctrine, but such possibility was eliminated due to the ‘principle of Caveat Emptor’ emerged by the influence of economic freedom which was popular in the 19th century. The idea of a general obligation arising out of any contract to act fairly and in good faith could not be supported. The reason why the UK law does not consider good faith as a general obligation is that UK traditionally tends to have a very free approach to rights. The UK contract law focuses on large-scale commercial transactions among exact merchants who make transactions on an equal basis. The U.S is a country adopting the common law system, but the American Law Institute’s Restatement(2d) of Contract 1981 recognizes that good faith is a doctrine by imposing the obligation of good faith on contractual parties in all contracts, and the Uniform Commercial Code also have the provision of good faith. Good faith is treated as an implied provision in the contract. It imposes obligations on the contracting parties that are perceived to be in the interests of justice. The obligation of good faith ensures that the intent of the contracting parties is not frustrated. The good faith obligation does not only proscribe conduct. It may also mandate or require affirmative action. It is important to note that the doctrine is generally perceived as a default standard in the United States. It cannot be used to effect ‘an end-run around the unequivocal and express terms of the contract.’ This thesis is a research under comparative law regarding good faith, and introduces the position of good faith under the common law system.