제주대학교 Repository

북한지역의 주택사유화와 그 이후 주택임차인 보호에 관한 연구

Metadata Downloads
Author(s)
오미진
Issued Date
2017
URI
http://dcoll.jejunu.ac.kr/jsp/common/DcLoOrgPer.jsp?sItemId=000000007943
Abstract
현재의 남한과 북한이 장래에 통일을 달성할 경우에 제도통합의 과정에서 북한지역에 소재하고 있는 주택에 대한 사유화 및 주택임차인의 보호와 관련한 법 제도를 어떻게 재편하는 것이 타당한지, 그러한 재편과정에서 고려되어야 하는 점은 무엇인지를 논리적으로 검증한다는 것은 중요한 의미가 있다. 물론 현재의 시점에서 장래에 어떠한 법적 문제가 발생할 것인지를 정확하게 예단하는 것은 일정한 한계가 있다. 그렇다고 하더라도 사회질서를 효율적으로 유지할 목적으로 만들어진 것이 법제도이므로, 불합리한 결과가 발생하는 것을 방지하거나 최소화 할 수 있는 방안들이 모색되어야 한다. 특히 주택소유 및 주택임대차제도는 인류의 역사와 더불어 발전되어 온 사회제도라기 보다는 최근에 이르러 새롭게 창출되어진 사회제도라는 점에서 종래에 발생한 법적 문제점들을 면밀하게 분석한다면, 장래에 정립될 관련제도는 더욱 합리적이면서 실질적 정의에도 부합될 여지가 높다고 생각한다. 또한 통일한국의 주택소유 및 주택임대차제도를 합리적으로 재편하기 위해서는 남북한의 주택소유 및 주택임대차제도가 현재에 이르기까지의 재편과정을 검토할 필요성이 있다. 특히 타인소유의 주택을 일정기간 동안에 이용하는 경우에, 주택임대인과 동동한 지위에서 주택임차인이 임대차계약을 체결한다는 것은 사실상 용이하지 않고, 임대차계약이 체결된다고 하더라도 주택임차인의 법적 지위가 안정적인 상태에 있다고 단정할 수 없다. 이러한 이유에서 당해 주택임차인의 법적 지위를 보호할 수 있는 다양한 방안이 마련될 필요가 있다. 이러한 점을 고려하여 경제적 약자라고 볼 수 있는 주택임차인의 주거생활과 생존권을 보장하기 위하여 남한에서는 「주택임대차보호법」이 제정되었던 것이다. 남한의 「주택임대차보호법」은 사회법적 차원에서 주택임차인을 보호하고 있는 대표적인 법률이다. 그러나 「주택임대차보호법」이 제정된 이후에 일반 국민의 주거생활은 더욱 다양하게 변화되고 있는 실정이다. 이러한 변화를 반영하여「주택임대차보호법」은 지금까지 20차례의 개정이 있었다. 물론 수차례의 개정과정을 통하여 종래에 발생하였던 법적 문제점들이 일부 개선되기도 하였지만 여전히 개선되거나 보완되어야 할 부분들도 적지 않다고 생각된다. 현행 「주택임대차보호법」은 다른 국가의 입법례에서는 거의 찾아볼 수 없는 규범형식으로 제정되었고, 특히 일반서민의 주거생활의 안정을 입법목적으로 하여 제정되었다는 점에서 민법과의 관계에서 특별법적 성격과 함께 사회법적 성격을 함께 가지고 있다. 이와 관련하여 최근에 법무부는 주택임대차계약과 관련하여 발생하고 있는 사회적 분쟁을 해소할 목적으로 임차보증금을 보다 신속하게 회수할 수 있는 보험제도를 도입하려는 움직임도 있었다. 이렇게 통일한국의 주택소유 및 주택임대차제도를 합리적으로 재편하기 위해서는 과거에 시행되었던 주택소유 및 주택임대차제도의 변천과정을 면밀하게 살펴보아야 한다. 다만 제도통합의 과정에서 유념하여야 할 점은 통일은 남북한의 분단 상황을 더 이상 후세대에게는 물려주지는 말아야 한다는 민족통합의 차원에서, 통일 후 북한경제의 신속하게 활성화하여 통일한국의 경쟁력을 상승시키고자 하는데 주된 목적이 있는 것이다. 따라서 남한 헌법상의 재산권 보장규정을 통일이라는 사회변혁상황에 그대로 대입하여 권리회복문제를 논의할 필요는 없다고 생각된다. 더욱이 남북한이 분단이후부터 현재에 이르기까지 각각의 지역에서 정부를 수립하여 규범력 있는 통치권을 행사하고 있다는 점과 국제사회에서 양자가 국제법 주체로서 평가받고 있다는 점 등을 고려한다면, 대등한 당사자의 관계에서 합의통일을 하는 것이 논리적으로도 타당하다고 생각된다. 따라서 분단 이후에 남북한에서 이루어진 사회제도는 모두 유효하다는 전제 위에서 통일한국의 주택소유 및 주택임대차제도를 재편하는 것이 타당하다고 생각한다.
It would be meaningful to logically verify how to reorganize the system in connection with the privatization of housing in North Korea and the protection of lessees and what aspects to consider for the reorganization in the process of systematic unification when two Koreas come to unify in the future. Of course, it would be difficult at the present moment to predict exactly what problems may arise in the future. However, there should be efforts to find solutions for problems related to regulation of public order so that the risk of causing unreasonable consequences can be minimized. Since the housing lease system is not something that is a system which has evolved along with the history of mankind but is being newly developed, a thorough examination of past problems can lead to a future legal system that is more rational and accords with substantial justice. Therefore, to rationally reorganize the housing ownership system and the housing lease system for unified Korea, it is necessary to evaluate how this system has changed through the years. Particularly, the modernization process of would have a significant relationship with the reorganization of the system for unified Korea. In using of others real estate, it is actually impossible for a tenant to make a contract with a landlord in equal status. And even after the contract, a tenant's right of lease was still in unstable condition, which leaded to raise the problem of tenant protection. So it was definitely necessary to develop the protection measure for the problem. Therefore, the Housing Lease Protection Act was enacted on Mar. 5, 1981, to protect the housing tenant's the basic right to live and the stability of housing life and started to provide the protection for tenants in social political prospect. In modern society, an aspect of the national housing life often changes depending on the change of social affairs. So, the Housing Lease Protection Act was enacted responding to the changing of the times and since then, it has been improved many problems presented by amending twenty times. However, there are still lots of things left to be desired. The house lease system has been generated and evolved into a peculiar law that can not be found in the example of foreign practices or legislations. The Housing Lease Protection Act was established for the purpose of stable residing lives for commonality, and has the feature of special law and social law from the viewpoint of the civil law. The Ministry of Justice is trying to promote the introduction of plans that can effectively secure the rapid recovery of security as part of plans to settle this social dispute–Enactment Proposal for the Introduction of Security Insurance System for the Returning of the Deposit Money and Improvement of Civil Law System issued by Office of Legal Counsel within the Ministry of Justice. To reorganize the housing ownership system and the housing lease system for unified Korea, it is necessary to examine the historical development process of the past system. It should be noted that the main purpose of unification is to stop passing on the sorrow of the divided nation to the future generations, and to strengthen competitiveness of North Korea by activating the local economy. Thus there is no reason to apply property rules of South Korea, which is regulated in the Constitution, directly in the changing situations caused by the unification. Furthermore, if it is taken into account that both Koreas have developed separate legitimate government with sovereignty ever since the division, that both are recognized as independent countries by the international law, it is logically desirable for two Koreas to agree on the unification as equal parties. As a consequence, the social systems of both Koreas should be considered valid, and the reorganization should take place under this premise.
Alternative Title
A Study on the Privatization of Housing in North Korea and the Protection of Lessees
Department
대학원 법학과
Advisor
김성욱
Awarded Date
2017. 2
Table Of Contents
제1장 서 론 ···································································································1
제1절 연구의 목적 ···············································································································1
제2절 연구의 방법과 범위·································································································2
제3절 논문의 구성···············································································································3
제2장 통일 후 북한주택 사유화의 입법방향 ······································5
제1절 통일 후 북한주택 사유화의 전제로서 지적통합의 문제 ·····························5
1. 접근방법 ····························································································································5
2. 남북한 지적제도의 특징································································································5
3. 남북한 지적제도의 통합에 있어서 고려요소 ··························································9
제2절 통일 후 북한지역에 소재한 주택의 사유화 문제 ·········································12
1. 접근방법 ··························································································································13
2. 비교법적 고찰················································································································14
(1) 동독지역의 주택사유화 ····················································································14
1) 구동독의 주택현황·······························································································14
2) 구동독의 주택정책·······························································································15
3) 동독지역 국유재산 사유화의 전담기관···························································17
가. 신탁청의 설립··································································································18
나. 신탁청의 업무··································································································20
4) 주택사유화 추진과정···························································································22
5) 주택사유화 지원제도···························································································25
가. 구 채무의 지원 ································································································25
① 구채무지원법의 제정배경 ·········································································26
② 구채무지원법의 구체적 내용 ···································································29
나. 주택보조금의 지원··························································································31
다. 세제 지원 ··········································································································31
(2) 러시아의 주택사유화······························································································33
1) 소비에트연방공화국 초기의 주택정책 ·····························································33
2) 소비에트연방공화국 해체 이후 러시아의 주택정책······································34
(3) 중국의 주택개혁 ····································································································39
1) 주택개혁 이전·······································································································39
2) 주택개혁 이후·······································································································41
(4) 체제전환국 등의 주택 사유화 조치에 대한 평가와 그 시사점 ····················43
1) 독일·························································································································43
2) 러시아 ·················································································································47
3) 중국 ·························································································································48
4) 주택사유화 전담기관의 설치문제·····································································50
가. 국유재산 총괄청 산하 공적 기관 설립방안··············································50
나. 위탁기관 중심의 단일화 방안 ······································································54
다. 검토 ····················································································································54
3. 북한주택의 사유화 과정에서의 고려요소와 사유화의 기본방향························55
(1) 사유화 과정에서의 고려요소 ················································································55
(2) 사유화의 기본방향과 주택소유권의 분급문제··················································59
제3장 현행「주택임대차보호법」의 규율태도와 문제점 ···············62
제1절 접근방법 ···················································································································62
제2절 「주택임대차보호법」의 변천과정 ·····································································64
1. 「주택임대차보호법」의 제정이유와 개정내용 ······················································64
(1) 「주택임대차보호법」의 제정이유와 주요내용················································64
(2) 1983. 12. 30. 「주택임대차보호법」의 개정이유와 주요내용·······················65
(3) 1989. 12. 30. 「주택임대차보호법」의 개정이유와 주요내용·······················66
(4) 1999. 01. 21. 「주택임대차보호법」의 개정이유와 주요내용·······················67
(5) 2001. 12. 29. 「주택임대차보호법」의 개정이유와 주요내용·······················69
(6) 2007. 08. 03. 「주택임대차보호법」의 개정이유와 주요내용·······················69
(7) 2009. 05. 08. 「주택임대차보호법」의 개정이유와 주요내용·······················70
(8) 2013. 08. 13. 「주택임대차보호법」의 개정이유와 주요내용·······················70
(9) 2016. 05. 29. 「주택임대차보호법」의 개정이유와 주요내용·······················71
2. 검토··································································································································73
제3절 「주택임대차보호법」의 적용범위 ·····································································74
1. 현행 「주택임대차보호법」의 규율태도 ··································································74
(1) 「주택임대차보호법」의 물적 적용대상····························································74
1) 주거용 건물···········································································································74
2) 건물의 전부 또는 일부·······················································································75
3) 겸용주택·················································································································76
4) 판례의 태도···········································································································76
(2) 「주택임대차보호법」의 인적 적용대상····························································78
1) 임대인의 자격·······································································································78
2) 임차인의 자격·······································································································80
2. 검토··································································································································81
(1) 물적 적용대상··········································································································81
(2) 인적 적용대상··········································································································82
제4절 주택임차인의 대항력·····························································································83
1. 대항력의 의의················································································································83
2. 대항력의 취득요건········································································································84
(1) 주택의 인도··············································································································85
(2) 임차인의 주민등록 ································································································87
3. 대항력이 발생하는 시기 ······························································································90
(1) 대항요건으로서 「주민등록법」상의 전입신고················································90
(2) 대항요건의 충족을 전제로 하는 우선변제적 효력··········································92
4. 대항력의 범위················································································································94
(1) 대항력 있는 임차인의 경우 ··················································································94
(2) 중간임차인의 경우··································································································96
(3) 대항력의 유지 여부································································································97
5. 검토··································································································································99
(1) 대항력의 취득시기와 관련한 법적 문제 ··························································101
(2) 다가구주택의 경우에 대항요건과 관련한 공시문제······································103
(3) 임차주택의 경매와 대항요건의 구비여부 ························································104
(4) 대항요건의 축소논의에 대한 평가 ····································································106
1) 비교법적 고찰·····································································································106
2) 주민등록 요건의 문제점과 개선방안 ·····························································111
가. 문제점 ··············································································································111
나. 폐지논의에 대한 평가··················································································113
다. 대항력의 취득이 곤란한 경우 ····································································115
제5절 주택임대차의 존속기간·······················································································116
1. 존속기간의 의의··········································································································116
2. 최단존속기간의 보장 ································································································117
3. 법정갱신························································································································119
4. 보증금 미반환 계약존속(법정존속기간) ·································································120
5. 검토································································································································120
제6절 차임규제 ·················································································································120
1. 차임증감청구의 요건··································································································120
2. 검토································································································································121
제7절 계약갱신·················································································································122
1. 계약갱신의 허용범위 ··································································································122
2. 검토································································································································123
제4장 통일 후 북한지역 주택임차인 보호와 관련한 입법방향 125
제1절 접근방법 ·················································································································125
제2절 북한주민의 주택이용 및 배분절차 ·······························································125
1. 북한의 주거유형과 주택형태 ··················································································125
2. 북한의 주택배분의 기준 ························································································128
3. 주택의 배정과 관리····································································································129
(1) 주택의 배정············································································································129
(2) 주택의 관리············································································································132
(3) 주택이용의 기본적 모습······················································································133
제3절 통일 후 북한주택에 임차인으로 거주하고 있는 북한주민의 보호방안··· 136
1. 문제의 소재 ··················································································································136
2. 적용범위 ······················································································································136
3. 대항력 ····························································································································137
4. 존속기간 ························································································································140
5. 차임규제 ························································································································142
6. 계약갱신························································································································144
7. 소유권의 원상회복에 따른 거주임차인의 보호····················································145
제5장 결 론 ······························································································150
참고문헌·····························································································································160
Degree
Doctor
Publisher
제주대학교 일반대학원
Citation
오미진. (2017). 북한지역의 주택사유화와 그 이후 주택임차인 보호에 관한 연구
Type
Dissertation
Appears in Collections:
General Graduate School > Law
Authorize & License
  • AuthorizeOpen
Files in This Item:

Items in DSpace are protected by copyright, with all rights reserved, unless otherwise indicated.