일본 메이지민법 수정안이유서상의 부동산물권변동과 그 영향 = Impact of the Exposé to Japan’s Meiji Civil Code on Real Estate Title Changes and Its Implications

다국어 초록 (Multilingual Abstract)

The purpose of this article is to trace the historical evolution of Japan’s real estate transfer of title system and to explore its legal significance and impact. To this end, this article focuses on the system of real estate transfers under the Meiji Civil Code and examines the differences in the system and the changes in the system in that periods before and after.
The founders of the Japanese Civil Code, who were eager to introduce a modern civil code through the opening of the port, were influenced by the French Civil Code, which was in force at the time, and enacted the Old Japanese Civil Code, which adopted a consensualism and a registration system for the change of real property rights. However, a legal debate arose over the implementation of the law, which advocated for immediate or postponed implementation, and a consensus was formed that the legislation of any one country could not serve as a model for Japanese Civil Code, leading to the enactment of the Meiji Civil Code of 1896, which was newly based on the civil codes of many other countries.
The Meiji Civil Code adopts the principle of consensualism for the establishment and transfer of title (Article 176), and stipulates that a third party cannot enforce against a real estate property right without registration (Article 177). However, unlike the Old Japanese Civil Code, the Meiji Civil Code did not distinguish between the party of good faith and the party of bad faith. The drafters of the Civil Code explain that the effect of the establishment or transfer of property rights based on the intention of the parties was limited under Article 177 because it is a general effect, and an absolute recognition of this would cause various problems in transactions. In other words, the Meiji Civil Code’s system for changing real estate property rights tends to prioritize transaction safety.
The Meiji Civil Code is still the current law of the land when it comes to the real estate transformation system. However, the introduction of the Pandecten method of distinction and the theory of the behavior of property rights and the German registration system in the early 20th century, combined with consensualism, led to a number of interpretation difficulties. In addition, Japan’s own theories and case law on third parties who can oppose have been developed over the decades, and as a result, Japanese theories of real property transformation began to differ in specifics from the French law on which they were modeled. In the 21st century, studies have been conducted in earnest to revise this theory, but they have not resulted in actual revision. Instead, case law and academic theories have supplemented the current system. However, it also shows a flexible attitude to solve urgent problems, such as the problem of unknown heirs, by enacting the Special Measures Act on the Facilitation of the Use of Land with Unknown Owners and amending the Real Estate Registration Act.

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