중국 통일민법전 제정의 의의와 전망

김준영,김인식 한국외국어대학교 법학연구소 2016 외법논집 Vol.40 No.2

본 논문에서는 2014년부터 진행되고 있는 통일민법전 제정논의와 그 쟁점을 고찰하고, 특히2015년 발표된 ‘민법총칙 초안’의 주요 내용을 분석하여 민법전 제정에 대한 고민과 향후 입법과정을 전망하였다. 중국의 민사법은 논리적인 일관성에 따라 체계적으로 입법되기 보다는 시대가 요구하는 실질적인 필요성에 따라 단행법이 차례로 제정되어서 오늘날 통일민법전이 존재하지 않고 있다. 이러한 이유로 건국초기부터 통일민법전의 필요성이 제기되어 1954년, 1962년, 1979년, 2002년까지 네차례의 민법전 제정 시도가 있었고 다시 2014년부터 현재까지 민법전 제정 작업이 진행 중에 있다. 즉 각 민사 단행법을 유기적으로 통합한 체계적인 ‘통일민법전’의 제정을 입법자와 법학자들은작금의 최대 민사입법 과제로 삼고 있다. ‘통일민법전’ 입법의 첫 번째 단계인 ‘민법총칙(초안)’은 단순히 단행법으로 분산되어 있는 중국 민사법률을 통합하여 제정하는 것을 넘어 새로운 민사 영역들에 대하여 법률적으로, 제도적으로 어떻게 해결해야 할 것인가를 고민한 결과물이자 ‘시대정신’의 반영으로 평가된다. 즉 자연과환경의 보호, 장기나 정자 등과 기술의 발전으로 인한 새로운 물(物)의 법률문제, 사이버 공간의민사법적 문제, 노령화시대의 새로운 의사능력 및 감호제도 등은 향후 인류가 마주하고 해결해야할 문제들 반영하고 있다. 한편 통일민법전 입법을 통하여 낙후되었던 법률문화를 선진화하고 경제규모와 국제적 위상에 상응하는 민사법제도를 확립하여 새로운 시대를 준비하려는 의지를 엿볼수 있다. This study analysed the major issues of Unified Civil Law Code Draft which China is trying to legislate since 2014, and the prospects of the legislation process. Civil law in China was not legislated in logical consistency, but several special laws were legislated separately by practical needs. Even though China tried to legalize a ‘unified’ Civil Law in 1962, 1979 and in 2002, China doesn’t have a unified Civil Law system even until now. In 2014, China has been trying to legalize a unified Civil Law system again. Making general provisions of the Civil Code is the first step of legislating unified Civil Law. However, this is not just a combination of separated laws, but an organic integration of them. In this process, China is trying to resolve new problems of civil laws that surfaced; such as; resolving the conflict between protection of the environment and property rights, treating the intangible property rights, or institutionalizing organ donation or sperm donation and so on. Meanwhile, even though China has become a leading nation, its law system is still behind time. Through legalizing unified Civil Law system, China is also trying to upgrade its law-making system and legal environment.

中國民法制定の動向

加藤雅信(가토 마사노부),김상수(번역자) 서강대학교 법학연구소 2011 법과기업연구 Vol.1 No.1

Tort Law of the People’s Republic of China was promulgated in 26 December 2009. China, unlike Korea or Japan, does not have unified civil code. Instead, China has wide range of civil special laws. The aim of this article is to explain historical implication of this promulgation of the Tort Law in China and its meaning with regard to China’s attempt to adjust future scheduled legislation of unified civil code by 2015, and lastly to introduce the brief characteristics in Chines Tort Law. Following Chapter Ⅰ as the introduction, Chapter Ⅱ covers Chinese Tort Law legislation details focused on legislation procedure. Chapter Ⅲ and Ⅳ offer brief history of Chinese Civil Law Legislation. Chapter Ⅲ covers first half of the history mainly from 1954 until Chinese Cultural Revolution. Chapter Ⅳ covers another half of history after Deng Xiaoping seized power. The ideological conflict between the extreme left socialist and the pragmatic rightist among chinese political elite, is reflected in the legislation history. Which law should govern business in socialism economy system? Is it economic law or civil law? This question appears in various forms through entire legislation history of China until Deng’s Southern Tour Talk in 1992, when Deng announced his idea of economic reform of China and it was the civil law"s victory over the economic law, also the pragmatic rightist victory over extreme left socialist. Also, this chapter offers brief intellectual debate regarding the idea of property in China. China’s unique political economic situation lead to idea of three types of property - Property of Nation, Property of Society(or Public) and Property of Individual. Chapter V shows how the ideological conflict between the extreme left socialist and the pragmatic rightist is reflected in this Chines Tort Law and its legislation history. Chapter Ⅵ and Ⅶ introduce China’s scheduled legislation of further civil special laws, the attempt to legislate a unified civil code, and the issues derived from the attempt. According to the legislation schedule of Unified Civil Code, this legislation of Chinese Tort Law means that the final stage is not far, however, currently there is not much discussion regarding the Unified Civil Code of China. And lastly, Chapter Ⅷ explains the summarized characteristics of Chinese Tort Law with 12 detailed topics.

유럽민법전연구회의 매매법 원칙

박영복 ( Park Young-bok ) 한국외국어대학교 법학연구소 2005 외법논집 Vol.19 No.-

The aim of the Study Group on a European Civil Code is to produce a codified set of Principles of European Patrimonial Law. The Utrecht working team is one of its various research teams, which started carrying out comparative research on sales contracts in 1999. These efforts, being of importance for arriving at a possible future European Sales Law, are based on the acquis communautaire(particularly Directives 1999/44/EC on certain aspects of the sale of consumer goods), the Principles of European Contract Law, the United Nations Convention on the International Sale of Goods(CISG), and national legislation. The set of principles on European sales law will be an academic answer to the ongoing process relating to the EU-wide harmonization of contract law. they could be a model law for further comparative and legislative activities within European contract law. The Principles of European Sales Law may serve as an optional instrument in cross-border transactions, allowing the parties to simply refer to this instrument as the applicable law. In addition, the principles may provide a solution when it proves impossible to establish the relevant rules of the applicable law. In this article I have outline the main activities and the outcome of the research of this academic working group. The Utrecht draft covers all kinds of cross-border sales transactions in goods within the European Union. For the various topics is proposed the solutions. In order to deal with the different issues relating to sales contracts, the relevant topics were divided into brief subchapters making up the final set of rules, such as Scope of Application & general provisions, Obligations of the seller, Obligations of the buyer, Remedies, Passing of Risk, Consumer Goods Guarantees.

유럽연합(EU)에서의 民事法 統一化作業에 관한 硏究

송호영 한국민사법학회 2006 民事法學 Vol.34 No.-

법정채권관계와 채권총칙규정

박희호(Park Hee Ho) 한국비교법학회 2007 비교법학연구 Vol.7 No.-

유럽에서의 民事法의 통일화

박영복(Young-Bok Park) 한국비교사법학회 2006 比較私法 Vol.13 No.2

It is possible to discern a progressive europeanization in the area of the private law. But the europeanization movement is not limited to legislation. First in this article is described the unification of private law by means of international convention which is sometimes regarded as an antecedent to the present europeanization(Ⅱ), after give an brief account of the growing unification in Europe and the european law culture(Ⅰ). To understand the impact of the European Community on private law is taken account of the legislative bases in the European Treaty(Ⅲ), which explain not only the present state of the Community’s achievements, but also the peculiar problems connected to the instrument of the national legal systems of the Member States. The legislative process is split up into two phases, the first at the Community level and the second within the single Member States. Although they are diminished by the duty of the courts to the national law in conformity with the directive the differences in form and content that remain after harmonization has taken place are still considerable. Another consequence of the implementation of private law directives are tensions with the structure of the existing national legislation. These observations point to the need of a more general approach. The piecemeal legislation of the Community cannot cope with divergencies resulting from the context of national law and in particular with differences in structure, principles and concepts. The harmonization of the general framework which accommodates specific instruments could be carried out by the courts(Ⅳ) and by legal scholarship(Ⅴ). The important facets of the process are the contributions of the European Court of Justice and of legal scholarship which has turned to the analysis of general principles of private law in various fields. The Commission on European Contract Law has certainly made the greatest progress in its work. There are many groups of scholars devoted to the elaboration dealing with the areas of the private law. On the basis of this understanding of the states in europe it is given the outlook of the european private law(Ⅵ).

ヨーロッパ(EU)私法の平準化 ― ヨーロッパ民法典の可能性 ―

中田 邦博 전남대학교 법학연구소 2016 법학논총 Vol.36 No.1

. ヨーロッパ(EU)私法の平準化のプロセスを検討し、ヨーロッパ民法典の可能性を検討するものである。 「1 ヨーロッパ民法典の構想と共通売買法」では、ヨーロッパ私法の形成を後付けているヨーロッパ民法典はまったくの「夢物語」とされたいたこともあったが、契約法領域にみられる近時の動向が、契約法の統一という側面を持つことを指摘し、市場ルールの共通化という意味でのEU私法統一の進展を否定することはできないことを指摘する。 「2 ヨーロッパ私法の形成をめぐる学説の動向」では、私法統一の意味とその方法論について、学問的な作業としてどのようなアプローチがあるのかを検討する。とりわけ、ケッツ、バーゼドー、ツィンマーマンのアプローチが取り上げられ、ボトムアップ型とボトムダウン型とに大きく分け、そこでの共通点と相違点を明らかにする。 「3 ヨーロッパ共通契約法典への道筋」では、さらに、ヨーロッパ共通法への道筋として、学問的な作業、ヨーロッパ契約法原則や共通参照枠草案など、ヨーロッパ民法典の形成やヨーロッパ契約法、ヨーロッパ消費者法の共通化を目指す動きを取り上げている。 「4 EU私法の平準化への新たな道開」では、ヨーロッパ共通売買法規則提案の意図とその内容を紹介している。 「5 おわりに―今後の展望」では、ヨーロッパ私法の統一化現象は、ヨーロッパ契約法原則などのモデル私法を参考にした各国契約法の現代化が展開したこと、さらにEU消費者法という形での統一プロセスが進行している以上、不可避の現象であることを指摘し、ヨーロッパ私法の統一はこれからも進展すること、そのなかにヨーロッパ共通私法を形成する動き(EU私法という共通化された法の蓄積と、学問的なレベルでのヨーロッパ民法典の形成の可能性)が内包されることを指摘している。アジアの国々にとってもそうした動きを分析することは、重要となる。

유럽 매매법의 통일화

박영복 한국민사법학회 2007 民事法學 Vol.37 No.-