韓国の伝貰権における法律上の内容 : 債権的伝貰との比較を中心に

The Legal Contents of Chonsegwon in Korea

Kim Hyunsun

廣島法學

The Hiroshima Law Journal

[ISSN] 03865010

[NCID] AN0021395X

In Korea, a house may be rented using three methods: 1. The right to a registered lease based on a deposit, which is called chonsegwon in this study; 2. The right to an unregistered lease based on a deposit, which is called chonse as an obligatory right in this study; and 3. Lease. Chonsegwon and chonse as an obligatory right are the traditional system used in Asia. However, they are predominantly used in Korea nowadays. Therefore, this study focuses on chonsegwon and chonse as an obligatory right. Chonsegwon is structured as follows: the lessee does not pay the monthly rent. Instead, the lessee pays “chonse money” to the owner. This money is usually 60–80% of the value of the house, which the lessee is expected to pay. This money is returned at the end of the contract. The interest that accrues from chonse money is considered as the monthly rent. This exists in the Korean Civil Code under Real Rights. (see Article 303(1): Any person having chonsegwon is entitled to use it in conformity with its purposes and to take the profits from it, by paying the deposit money and possessing the real property owned by another person. Furthermore, he is also entitled to obtain the repayment of deposit money in preference to persons having the junior right or other creditors, with respect to the whole real property.) Thus, chonsegwon shall be acquired by contract and registration (see Article 186: Effect of Changes in Real Rights over Immovables). The process of renting with chonse as an obligatory right is the same as with chonsegwon, but it does not include registration. Therefore, chonsegwon is a Real Right, while chonse as an obligatory right is categorised under Obligatory Rights because the process does not include registration. In Korea, chonse as an obligatory right is more widely used than chonsegwon. In case of problems faced while using chonse as an obligatory right, there is a need to clearly state its legal nature. In such a case, we should consider that the Korean Civil Law follows the Pandekten system; i.e., real and obligatory rights are partitioned.

Law [ 320 ]

jpn

広島大学法学会

許可なく複製・転載することを禁じる。

[ISSN] 0386-5010

[NCID] AN0021395X