Earticle

주거소유권은 공동재산에 대한 공유지분과 결합된 주거에 대한 전용소유권이다. 이러한 주거 소유권은 특별히 형성된 공유로서, 공동재산에 대한 공유지분권을 그 중심적인 권리라고 할 수 있다. 부분소유권은 공동 재산에 대한 공유지분과 결합된 건물의 비주거용 공간에 대한 전용소 유권이다. 위 둘의 공동의 상위개념이 공간소유권이다. 즉 이에는 주거소유권과 부분소유권이 포함되며, 주거소유권 또는 부분소유권으로서의 특질이 존재한다. 주거소유권은 전용소유권의 계약적 양도에 의해서, 또는 분할에 의해서 설정된다. 전용소유 권의 계약적 양도란 토지와 그 위에 있는 건물을 수인이 공유하고 있는 경우에, 공유자가 계약에 의해서 상호간에 주거에 대한 전용소유권을 부여하고, 전용소유권을 부여한 한도에서 상호간에 토지의 공유지분권을 제한하는 것에 의해 주거소유권을 설정하는 방법이다. 그런데, 이는 토지 소유자는 동시에 그 위에 있는 건물의 소유자라고 할 수 있음을 규정한 독일 민법(BGB) 제93조 에 어긋난다. 이러한 전용소유권은 오직 주거 또는 그 밖의 공간이 구분⋅독립되어 있을 경우에 만 인정된다. 이러한 구분⋅독립은 구체적 법률사례에서 특별히 오래된 건물, 지하실, 차고, 호 텔, 벽의 파괴 등과 관련하여 문제될 수 있다. 또한 부동산의 소유자는 등기소에 대한 통지에 의하여 부동산에 대한 소유권을 공유지분으로 분할할 수 있다. 건설업자에 의한 집합건물의 분양이 이에 해당한다고 볼 수 있다.

A housing ownership is a private ownership about residence that is combined with the co-owned share about joint property. It is a specially foaming sharing, and the co-owned share about joint property is a main right of it. A part ownership is a private ownership about non-residence that is combined with the co-owned share about joint property. A space ownership is a upper concept of both sides, namely includes of a housing ownership and a part ownership. A housing ownership is set up by a transfer of a private ownership or a partition under German law of a housing ownership. It is against BGB § 93 that is prescribed that a owner of a land is a owner of a building on it at the same time. A private ownership is acknowledged only when residence or non-residence is separated with and independent of other space. This separation and independence can be legal problem about very old buildings, basements, parking garages, hotels, destructions of walls, etc. It suggests to us about the settlement of a new partitioned ownership A owner of land can partition a ownership in the co-owned share by notice to a register office. It is relevant to the distribution of a collective building by builders.

The purpose of this study is to inquire into the relationship corporate ownership structure and the tax burden under the achievement of positive earning by using 9,376 business-year samples, which the firms have listed in KOSPI and KOSDAQ from 2008 to 2013. In order to verify their association, this study set up major and foreign shareholders share-ratios at independent variables as ownership structure`s measure value. Also, to compute corporate`s tax burden, this study uses the amount of tax burden (Kang and Park 2007) and Book-Tax Difference (Desai and Dharmaphala 2006) at dependent variables. The results of this study are as follows. First, major shareholders share-ratio in this study`s analysis showed negative(-) correlation with corporate tax burden under the achievement of positive earnings. It is interpreted that major shareholders give negative stance to corporate tax burden even if firms have positive earning. Second, this study showed the other result, which foreign shareholders share-ratio have positive(+) correlations with corporate tax burden under the condition of the positive earning`s achievement. It means that foreign shareholders have positive stance to corporate tax burden as much as firms profit mount up. Therefore, we can re-checked what major and foreign shareholders within ownership structure have different views on corporate profit and tax burden under the circumstance as the achievement of positive earnings. this result by the analysis means that they have different origins and interests.

This article contains the full translation of reform motives of the Meiji Civil Code(the part of property law), which are based on the texts edited by HIRONAKA Toshio, Minp? Shuseian (zensampen) no Riy?sho (Yuhikaku, 1987), and adds some comments from the viewpoints of the Korean lawyer, whose legislation has been widely influenced by the European legal tradition via the Japanese legal scholarship. Especially, this article examines legislative concerns about restrictions on ownership. The Meiji Civil Code establishes provisons of neighbor relationship from article 209 through 238. These provisons has been greatly influenced by the German and Swiss Civil Code. While the old Japanese Civil Code draft(by G. Boissonade) treated the neighbor relationship as a type of legal easement in the section of the easement like France, the Meiji Civil Code provides it in the section of the ownership like German. Because the drafters of the Meiji Civil Code thought that the boundary of land ownership could be marked by defining the neighbor relationship. However, they did not consider pollution unlike the German Civil Code. The neighbor relationship part of the Korean Civil Code seems to be similar to the Meiji Civil Code except for the section of pollution. Those provisons concerning neighbor relationship in the Meiji Civil Code are derived from Japanese customs between the late 1800s and the early 1900s. In this sense, they are inconsistent with modernized society in these days. Nevertheless, their fundamental idea still deserves closer scrutinies in maintaining today’s community life.

Article 5 clause 1 of the Registration of real estate act provides that except as otherwise provided for by any act, the order of priority for rights registered with regard to the same real estate shall be in accordance with the order of registration. Clause 2 of the above same article states that the order of registration shall be, from among registration forms, in accordance with the priority number for registration field in the same district. If an estate is owned jointly by two or more persons in proportion to their own shares, the estate shall belong to co-ownership. The co-owners may make use of or take the profits from, in proportion to their own shares, the whole of the article owned jointly. In a registry, one form shall be used for one lot of land. If someone owns the speific part of one lot of land, he shall subdivide that estate. Without subdivision of land, specific parts of such land are owned by specific owners in interior otherwise in exterior they registrate their own shares. In the above mentioned partitioned co-ownership, a person who has for twenty years peaceably and openly held possession of the specific part of the jointly owned estate with an intention to own it, shall acquire the ownership.

This article contains the full translation of reform motives of the MeijiCivil Code(the part of property law), which are based on the texts editedby HIRONAKA Toshio, Minp? Shuseian (zensampen) no Riy?sho(Yuhikaku, 1987), and adds some comments from the viewpoints of theKorean lawyer, whose legislation has been widely influenced by theEuropean legal tradition via the Japanese legal scholarship. Japanese former Civil Code draft(by G. Boissonade) had manyconceptual and systematic provisions which were scattered in the part ofproperty and the part of acquisition of property. Whereas the JapaneseMeiji Civil Code adjusted the provisions briefly and to the point in thepart of property in answer to practical questions in those days Japan topursue the policy of codifying Japanese Civil Code. The Japanese Civil Code makers tried to seek the balances between thereference of the comparative law and the circumstances of Japan in thosedays.

The Korea civil act does not regulate who owns the worked building when the all or main part of building material for building construction is provided. Under article 664 of Korea civil act, a contractor has a right to receive a consideration for the results of the work and promises to complete a construction work. Even if a contractor provides the all or main part of building material for building construction, the contractor can’t own the worked building. This means that a contractor has only a right to receive a consideration for the results of the work to the person who ordered work. However a lot of cases assert that a contactor is the one who first owns the constructed building and this ownership is subsequently transferred to the person who ordered the work, if a contract is signed for the guarantee of a payment for the consideration for results of the work. If cases referring to works are considered carefully, those cases can be divided into two occasions: One occasion with a contract of work and the other occasion without a contract of work. A contractor who provided the all or main part of building material for building construction, basically has the ownership of a worked building if there exists a contract of work. But the person who ordered work, has a ownership of a worked building if there is a consent about above person’ ownership between this person and the other contract’s party(a contractor) or if a contractor is recorded on preannounced registration. However, if there exists no contract of work, for example, when not a person other than the land owner gets the go-ahead on building project, the ownership belongs to an applied person or a land owner case by case. This situation is a little changed after the enforcement of a act on the registration of real estate under actual titleholder’s name. If the contract of work is concluded, it is wrong for a contractor to have the ownership of a worked building in view of the character of this contract. the worked building also belong to the person who ordered the work. Likewise, there is no problem about a right to get the charges of works because a contractor has a right of retention, exceptio non adimpleti contractus and a right to demand creation of mortgage on building which is object of contract. Because of what’s explained above, a contractor has the stable position of this contract.