Civil Act

The Civil Act or Civil Code (민법/民法), enacted on February 22, 1958 by Law No.471, is a general law which provides the general provisions on the social relations, the rights on personal and real properties, family relationship and inheritance of a private person.

The history of legistion and subsequent revisions of the Civil Act is posted in separate articles. The gist of the Civil Act including the nature, ideology, main points, etc. of the Act is explained below. The latest amendment to the Civil Act is summarized here.

Key words
Civil Act, Roman system, Pandekten system, General Provisions, property law, claims law

System of the Civil Act
There are two types of codification system in civil law: Institutionensystem and Pandektensystem. The Institutionensystem, i.e. the Roman system classifies provisions into the following categories: persons, property, and litigation. This system is adopted by the French Civil Law.

In contrast, in the Pandektensystem, general provisions are the first to be laid out and then come the other contents of the code which are specified into the following four categories: real rights, claims, relatives, and inheritance.

The Korean Civil Act adopts the Pandektensystem. In particular, the Civil Act maintains the way of stipulating general provisions before the specifics not only in the category of the general provisions, but in the areas of real rights and claims as well. For instance, the provisions on changes in real rights (Articles 185 through 191) that are applied to real rights over both movables and immovables and the provisions on possessory right (Articles 192 through 210) are stipulated ahead of the real rights provisions.

Likewise, in the Claims Law category, the general provisions that can be generally applied to (Articles 373 through 526) contract, management of affairs, unjust enrichment, and torts are located prior to the rest of the provisions. For reference, in North Korea, the Family Law was independently legislated before the enactment of the Civil Code, which differs from the legal system of Korea where the provisions on relatives and inheritance, in other words the family law is part of the Civil Act.

Background of the Civil Act
The Civil Act is composed of Part I. General Provisions (Articles 1-184), Part II. Real Rights (Articles 185-372), Part III. Claims (Articles 373-766), Part IV. Relatives (Articles 767-979), Part V. Ineritance (Articles 997-1118), and Addenda.

Nature
Among the contents of the Civil Act, the Claims Law mainly imported the contents of Japanese Civil Law, along with those of German and Swiss Civil Law. There is no written statement as to which foreign legislations were referred to in drafting the Civil Act. However, it seems that the Italian Civil Law, the Civil Law of the Republic of China, and the Manchurian Civil Law were also taken into account as well as the legislations mentioned above.

It is noteworthy that while the Japanese Civil Law was based on the First Draft of the German Civil Law (BGB) with some deference to the French Civil Law, Korean legislators drew up the draft mainly on the basis of the Japanese Civil Law, but eliminated the most of its French elements and added further elements of the German and Swiss Civil Law instead.

Therefore the Civil Act is identified as part of the Continental Law, and systemized according to the Pandektensystem, i.e. classified into general provisions, real rights, claims, relatives and inheritance, coming very close to the German Civil Law (BGB) in consequence.

The Family Law was established according to principles of democracy, and by contrast with the Property Law, was based on the nation's longtime traditions. Traditional customs such as clan rules, memorial service inheritance, and the system of property inheritance were modified to such an extent that they would be consistent with modern principles of democracy.

Ideology
The ideology that generally goes through the current Civil Act is based on the basic principles of modern civil law. The Western modern civil law was founded on the following three principles: the principle of respect for private property, the principle of private autonomy, and the principle of liability with fault. However, social and economic changes called for the modification of aforementioned basic principles in order to correct the adverse effects of the capitalistic system.

Thus the respect for individual liberty had to be restricted to a certain extent by the necessity of avoiding collision with other people's liberty, while greater emphasis started to be laid on duties as a member of the society.

The basic principles of modern civil law modified according to public interests are embodied in the following principles that impose limitations on private rights: the principle of trust and good faith, the principle of prohibition of abuse of rights, and the principle of public order. However much modified the basic principles may be, the modification only occurs within the scope of rectifying their adverse effects. Thus, their status as basic principles remain unaltered. It is needless to say that the Civil Act follows the principles set above.

The current Constitution guarantees the right of property, determines the contents and limitations thereof by Act, and provides that the exercise of property rights shall conform to the public welfare, and allows expropriation, use or restriction of private property from public necessity (Article 23). However, even when such restriction is imposed, no essential aspect of the freedom or right shall be violated (Article 37(1)).

With such constitutional guarantee of property rights and restrictions thereof, the Civil Act defines the ownership as the right within the scope of law to use, take the profits of, and dispose of the article owned, and imposes a certain degree of restriction on the right by providing for the principle of trust and good faith (Article 2(1)), the principle of prohibition of abuse of rights(Article 2(2)), and the nullification of a juristic act which has for its object such matters as are contrary to good morals and other social order (Article 103).

In addition, the Civil Act (the proviso to Article 758(1)) and several special acts(e.g. Mining Industry Act, Guarantee of Automobile Accident Compensation Act, Labor Standards Act, etc.) provide for the principle of liability with fault, and convert the burden to prove the party's fault by acknowledging the principle of intermediate liability. To sum up, the Civil Act, while recognizing three main principles of modern civil law as its basic principles, accepts the principles modified according to public interests into its system.

Content of the Civil Act
The content of the Civil Act is composed of the following five parts.

General Provisions
General Provisions (민법총칙/民法總則: Part I) begins by stipulating Common Provisions - source of Civil Law and principle and Trust and Good Faith. As subjects of rights, natural persons (Chapter 2) and juristic persons (Chapter 3) are defined, while things (Chapter 4) are defined as objects of rights. Juristic Acts (Chapter 5), the most important cause for alteration of a right, and Period (Chapter 6) as well as Extinctive Prescription (Chapter 7), the most important cause for extinguishment of a right, are followed.

The provisions in General Provisions are mostly related with the aspects of property law, creating a loophole that they are difficult to apply in the family and inheritance law. Moreover, the fact that there are no common provisions about subjects of rights such as commercial company, the fact that there are no regulations on objects of rights such as intangible property right which is increasing in importance nowadays, and the fact that juristic acts are so microscopically analyzed that they mainly deal with expression of will can be indicated as problems.

Property Law
Property law (물권법/物權法) consists of provisions on Real Rights (Part II) and Claims (Part III). In German Civil Law (BGB), provisions on claims are placed ahead of those on real rights, whereas the Civil Act puts provisions on real rights ahead of those on claims.

Provisions on Real Rights mainly deal with direct management, use, profiting and disposition of goods. According to Article 185 of Civil Act which stipulates the principle of legality of real rights, the Civil Act sets eight types of real rights. There are possessory right, ownership and restricted real rights. Restricted real rights are subdivided into usufructuary real right, which includes superficies, servitude and chonsegwon (right to registered lease on deposit basis), and real right granted by way of security, which includes right of retention, pledge and mortgage.

Civil Act acknowledges three forms of joint ownership - collective ownership, co-ownership and partner-ownership. Some scholars criticize that these three forms are more German style than German Civil Law (BGB), the home to German law. However, these three forms were adopted at the time of legislation and they continue to exist until today.

Following the formalism of German law, a change of a real right occurs when there is an act of a real right as well as registration and transfer. Many countries, including German Civil Law (BGB), adopt the principle of credibility. However, the Civil Act applies this principle only on chattels and does not apply it on immovables, which has more importance in transactions.

This is an important determination by the Civil Act, which prioritizes protection of genuine rights before protection of credibility or transactions. Regarding ownership, Act on the Ownership and Management of Aggregate Buildings has been enacted to meet the demands of the times, as number of apartment buildings, row houses and other buildings are increasing. Moreover, in order to restrict land ownership which is often abused in speculation of real estates, the public concept of land ownership was established and measures to eradicate speculation were introduced several times. For example, land transaction permission and reporting system, housing land ownership cap system, imposition of integrated land tax, development charge and land excess-profits tax were enacted.

Among usufructuary real rights, Chonse-Gwon (전세권/傳貰權) is unique to the Civil Act, where customs were legalized. Chonse-Gwon is a right to possess immovables by paying deposits to use and profit from them. The amendment in 1984 acknowledged the right to preferential payment of deposit, adding its characteristic of real right granted by way of security. However, in reality, the lease which is a lease on deposit basis in Claims is more preferred to Chonsegwon since it does not require registration. Therefore Housing Lease Protection Act was enacted to protect lessees.

Unlike the usufructuary real right which uses the objects in practice as the real right with the purpose of claim security, the real right granted by way of security is the right of value that mainly aims to acquire exchangeability.

There are right of retention as legal real right granted by way of security, and pledge and mortgage as contractual real right granted by way of security in the real rights granted by way or security. It is difficult to meet the demands from transaction groups with these three rights. In addition, objects of usage are limited varying from the types of the real right granted by way of security and the procedure is also complicated. In particular, as the procedure of auction is cumbersome and the price of successful bid is often much lower than the market price, the irregular security measures are developed in an attempt to avoid the complex procedures. There are various types of irregular security measures, including transfer for security, reservation of payment, repurchase, reservation of buying and selling, reservation of repurchase, ownership reserve transaction, etc.

Among the irregular security, transfer for security has made up for the weakness that the pledger cannot use the pledged property as the pledge retains the property. However, because it takes the form of transfer of ownership, there is potential possibility for abuse for profiteering actions. There have not been any legal measures to prevent the possible abuse until the enactment of Provisional Registration Security Act in 1983. This Act stipulates that when there is a transfer for security of things that can be publicly announced by registration, the creditor does not obtain the ownership but only the right to property transferred for security-the restricted real right, even if it takes the form of transfer of ownership. Although there are no legal regulations that directly regulates transfer for security of chattels, the Provisional Registration Security Act must be applied mutatis mutandis.

Since the mortgage in the Civil Act has a strong appendant nature towards the secured claim, it is not possible to have the mortgage itself as the objects of transactions, unlike the modern mortgage system in developed countries where the mortgage itself can be transacted as right of value. Therefore securitization and fluidization of mortgage is required in order to keep up with the necessity to use the material security right as a right of value independent from secured claim.

Claims Law
Part on Claims (채권법/債權法) consists of General Provisions (Chapter 1), Contract (Chapter 2), Management of Affairs (Chapter 3), Unjust Enrichment (Chapter 4) and Torts (Chapter 5). Contract is the cause of occurrence of claims by juristic acts. Management of affairs, unjust enrichment and torts are the claims derived by the legal regulations. There are 14 types of model contracts and what's more, new types of contracts, such as broadcasting appearance contract, exclusive contract, publishing contract, facility rental contract, travel contract, etc. are being established in transactions in practice.

The most important claim derived by legal regulations is torts. If there is a tort, a claim for damages takes effect and the victim bears burden of proof. Furthermore, as society becomes complex, conversion of burden of proof and legal principle of special tort that approaches strict liability are developed.

Family Law
Family law (친족법/婚姻法) consists of Relatives Law (Part IV) and Inheritance Law (Part V). Relatives law regulates marriages, engagements, parent-child relationship, relatives and their support, guardianship, supervision, etc. Meanwhile inheritance law deals with the legal effect of death of persons concerning property law. This is to say that it deals with the question of to whom and how the rights and duties of an ancestor will belong to.

Current family law tries to break away from traditional blood relatives in the male line and family-centered customs and be based on Constitution that regulates human dignity and gender equality.

Part on Relatives provides General Provisions in Chapter 1 regulating the scope of relatives, etc., and Chapter 2 defines family. Regulations in Chapter 3 provides for formation of matrimonial engagement and marriage, effect of marriage and divorce. Chapter 4 defines parents and children, dealing with biological parental relation, foster child relation, parental authority, etc. Next to Chapter 5, it deals with guardianship, family council (Chapter 6) and support (Chapter 7).

Inheritance Law
Part on Inheritance (상속법/繼承法) is divided into inheritance, wills and legal reserve of inheritance. Part on Inheritance also has General Provisions and regulates in order of inheritor, effects of inheritance, acceptance and renunciation of inheritance, separation of property, and absence of inheritor. Chapter on wills stipulates General Provisions, and forms, effect, execution and withdrawal of wills. Moreover Chapter on legal reserve of inheritance deals with persons with right to legal reserve of inheritance and legal reserve of inheritance, calculation, recovery, extinctive prescription, etc.