「定期借地権」をめぐる若干の問題点

概要

論文の詳細を見る
In 1985, the Civil Law Division of the Legislative System Deliberation Council commenced deliberation on amendment to the Land Lease Act(1921), the Building Lease Act(1921)and the Building Protection Act(1909). The Civil Law Division led legislation of the new Land and Building Lease Act(1991), referencing the opinions of various sectors. The amendments made cover many areas, but it is understood that the newly introduced legislative principle is totally different from the past one, whose central notion was the protection of the tenant. In view of this, this paper is intended to define the legislative principle of term land lease rights based on an overview of the Term Land Lease Right(Article 22 of the Act). In addition, two other types of rights have been established, the Land Lease Right with Special Condition for Building Transfer(Article 23 of the Act)and the Commercial Land Lease Right(Article 24 of the Act). As a result of the new action, three new types of term land lease rights have come into being, adding variety to the Land Lease Right, which is bound to be invalidated with maturity of the given term. In contrast, there used to be two types of rights:the Common Rental Land Usage Right and the Short Term Land Usage Right. So as to define the legislative principle of term land lease rights, it is necessary to clarify the importance of the course of changes in legislative and social significance of acts relating to land and building lease after the Meiji Period. This is necessary because with land lease rights as defined in European countries and the United States of America, land and the buildings on it are taken to be inseparable property as a premise, and with usage rights, both land and the buildings on it are automatically taken to belong to the landlord without any additional action. However, the Japanese attitude toward the situation is different. The traditional Japanese principle toward land lease rights has developed uniquely in Japan. In light of this, when observing the birth of the new type of term land lease right. I believe taht its fundamental or primary principle may be detected among the course of legislative and social changes of land lease rights after the Meiji Period. The main legislation and amendment that resulted in the major amendments this time are as follows:The Building Protection Act(1909)was legislated in terms of the exclusion articles to Civil Law Articles 177 and 605 in order to cope with transactions attributable to earthquakes;the Land Lease Act(1921)and the Building Lease Act(1921)were legislated to cope with the serious situation of urban housing experienced after World War I, addressing affairs that were not covered by Civil Law(namely, rights for demanding an increase or decrease in land rentals, etc.)and also defined forcible measures(namely, a legal basis for term of duration, right of purchase demand of building, decay and loss of building, etc.). By amendments in 1941 to the Land and Building Lease Act, "reasons for the common good" was introduced with a view to secure housing by establishing a social framework in the backing of all-out war support for World War II. This amendment is viewed as a change made within the scope of the Japanese land and building lease rights based on single contract of Roman law(See Note 1). However, the three types of Term Land Lease Rights(Articles 22, 23, and 24)that have been newly introduced to the Land and Building Lease Act this time bear a strong similarity to the land lease rights of western nations which are based, in the main, on Continental Law. Therefore, the point in question is whether there is a type of law similar to the Term Land Lease Right stemming from Continental Law that has been newly introduced to the Japanese Land and Building Lease Act.
日本法政学会の論文
1995-05-15

「定期借地権」をめぐる若干の問題点

スポンサーリンク

概要

日本法政学会 | 論文

スポンサーリンク