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Three Special Civil Acts on Real Estate and Common Welfare

  • Public Land Law Review
  • Abbr : KPLLR
  • 2018, 84(), pp.1-19
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law
  • Received : October 31, 2018
  • Accepted : November 22, 2018

Heo, Kang Moo ORD ID 1

1전북대학교

Accredited

ABSTRACT

Real estate policy including housing is an area which is directly connected to everyday life and it requires well timed response and application to social and environmental changes which is a basic role of the government. For this purpose, so called three special civil acts on real estate include 「HOUSING LEASE PROTECTION ACT」 which was established in the 1980s for stable residence of lessee, 「ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS」 which regulates the relationship of rights and duties of divided ownership of buildings, and 「COMMERCIAL BUILDING LEASE PROTECTION ACT」 which was established in the 2000s for protecting lessee of commercial buildings. Special civil acts on real estate are established and enforced in order to provide necessary rules and regulations with regard to special and specific matters which are difficult to efficiently regulate solely by rules and regulations of civil acts or which have no rules and regulations provided by civil acts. In case of collision between civil acts and special civil acts concerning the same matter, special civil acts are prior based on the principle of priority in special acts. Considering the nature of special civil acts, intervention of administrative agencies are allowed to the minimum extent necessary which do not undermine the principle of private autonomy and the Ministry of Justice have the jurisdiction which is a ministry and office concerned in civil acts. Special civil acts on real estate were established in the form of special acts within civil acts and therefore regulated for the sake of the legal relationship between lessor, lessee, and/or persons holding a divided ownership and political intervention is minimized. Due to the nature of the Ministry, the Ministry of Justice regulates such acts for the sake of legal relationships such as rights and obligations, and for this reason, linkage between protection of lessor and lessee and real estate policy discloses legal and political limitations. As there are almost no administrative sanctions such as fine and punishment in case of infringement of law, parties have no choice other than personally seek relief by putting in a claim for damages through a lawsuit. Nevertheless, considering that the protection of housing and commercial building lessee is basically linked with the real estate market and interconnected with various real estate public policies including taxation, finance, information and statistics, it is time to fundamentally review the legal relationship-centered approach. The purpose of this study is to review the main contents of the background of the establishment of three special civil acts on real estate and how the policy for protecting housing and commercial lessee can promote security of housing and business activities by protecting the rights of lessor and lessee for the purpose of enhancing public welfare, and furthermore to suggest legislative and political solutions from a perspective of a specialist in public law focusing on measures which may contribute to a balanced development of the national economy.

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