Research Report
A Legislative research on Korean Farmland Law - farmland ownership, lease and management law-
Ⅰ. Background and Purpose
▶ Research background
○ In 1996, in order to respond to the comprehensive competition structure represented by the ‘Uruguay Round’ and the globalization of the world economy, the 「Agricultural Land Act」 was enacted by integrating five laws including the 「Land Reform Act」. Examining the revision history of the 「Agricultural Land Act」 after its enactment, the requirements for acquisition and ownership of farmland have been alleviated, and prior regulations of the Farmland Act have been continuously relaxed in order to respond to the liberalization of agriculture and population aging, and at the same time, prior farmland management In order to make up for the vacuum in the farmland, follow-up management has been strengthened through the introduction of the farmland disposal system. Despite efforts made to ensure the appropriateness of farmland management through both pre- and post-regulation, farmland regulations were continuously eased as the development of industrial complexes and housing complexes increased, and farmland ownership by non-farmers and farmland leases increased. have appeared
○ Due to the recent farmland speculation incident, the need for reform of the farmland legislation was raised. As farmland was diverted to large-scale development sites such as industrial complexes and public housing complexes, the practice of acquiring farmland for speculative purposes, centering on the planned development areas, became a reality as an incident called the ‘LH Incident’. Due to this case, it was recognized that the Farmland Act system, which restricts the acquisition of farmland by non-farmers in the Farmland Act, was ineffective in achieving the purpose of regulation. In the process of investigating the case, it was also revealed that the agricultural plan, which was prepared in a false way in the process of acquiring farmland, was used to disguise the qualifications of a farmer. In the midst of this situation, in August 2021, three related laws were revised: the 「Agricultural Land Act」, 「Rural Community Corporation Act」, and 「Act on Fostering and Supporting Agricultural and Fishery Entrepreneurs」.
○ Corresponding to the change in the demographic structure, which is mainly due to the decrease in population and the change in the ratio of population composition between generations, changes in the structure of the agricultural population are also appearing in the agricultural industry. As a result, it has become a common phenomenon that farmland owners and agricultural managers do not match. Although the Constitution declares the principle of tillage, it is practically impossible to operate the farmland system so that only those who own farmland can engage in agricultural production activities based on self-cultivation and utilize the economic use value of farmland through this. Currently, the share of leased farmland and farmhouses is about half of all farmhouses, and farmland leases are expected to continue to expand as inherited farmland and migration increase due to population aging.
▶ Research Purpose
○ (Reexamination of the principles and legal basis of the Agricultural Land Act)
- This study examines the principles of farmland law in order to prepare legal and institutional improvement measures for the ownership, use, and management of farmland in a changed environment such as population, resources, and industry, and what legal principles and principles the farmland law system is based on. Article 86 of the first constitution of 1948 stipulates, “Farmland is distributed to farmers, and the method of distribution, the limit of ownership, and the contents and limits of ownership are determined by law.” From the words 'to you', it can be seen that the first constitution adopted the 'principle of the inheritance of the people'. However, the specific contents of the farmland are embodied in the law, and the ownership of farmland also has the nature of a property right in which the contents and limits of ownership are determined according to the law. As for the specific content of tillage oil fields, Article 6, Paragraph 1 of the 「Agricultural Land Act」 stipulates that ‘Farmland cannot be owned by anyone other than those who use it for their own agricultural management or use it.’
- The Constitutional Court stipulated the principle of farmland ownership as a principle for farmland ownership from the time the Constitution was enacted to the current Constitution. It has been stated that this is to achieve sound development of the national economy by preventing the same social harms. Nevertheless, it is difficult to grasp the legislative purpose of the farmland because the content of the relevant article only stipulates the principle of ownership of farmland.
- The legitimacy of hard work can be said to originate from the historical experience and value that vigilant farmers can efficiently use and preserve farmland when they own farmland, and the principle of hard work declared in the Constitution and laws It can be seen that the values have been inherited. Farmland lease and consignment management were introduced with the amendment of the constitution in 1980 as the need to legally and institutionally accept the practice of farming in reality even if it is not in the form of self-cultivation according to socio-economic conditions despite the principle of tillage. . Article 121, Paragraph 2 of the Constitution stipulates, “Leasing and consignment management of farmland for the purpose of improving agricultural productivity and rational use of farmland or for unavoidable circumstances are recognized under the conditions prescribed by law.” In order to design a system for legal and reasonable farmland use, it is necessary to review the permissible scope and limits of farmland lease. The issue of how to set 'limits' is emerging, and in this regard, a review of the 「Act on the Promotion and Support of Agricultural and Fishery Entrepreneurs」 is required. In addition, it is necessary to review how the 'scope and type of agricultural management' will be stipulated in the relevant laws and regulations in relation to 'agricultural management'.
- With the enactment of the Act on Special Measures for the Development of Agricultural and Fishing Villages in 1990, farming associations and agricultural corporations were allowed to own farmland, and as a result, the scale of leased farms began to expand. In addition, with the enactment of the Farmland Act in 1996, non-farmers living in cities can legally acquire farmland if they are issued a farmland acquisition qualification certificate in accordance with the legal requirements. In addition, as the lease of owned farmland was approved as a legal act according to the supplementary provisions of the enacted Farmland Act, the area of leased farmland was further expanded. In 2003, non-farmers were allowed to own farmland as it allowed them to acquire farmland for the purpose of weekend farming or experience farming up to 1,000㎡ per household.
- In addition to changes in the farmland ownership system, there was a tendency to decrease the size of farmland. As the scale of national land development expanded during the Lee Myung-bak administration from 2008 to 2013 and the Park Geun-hye administration from 2013 to 2017, farmland conservation charges and alternative forest resource creation costs were temporarily reduced. As a result, the size of farmland continued to decrease. Based on the assumption that non-farmers who do not farm can own farmland, if the future farmland ownership structure is predicted based on the current level of non-farmers' farmland ownership rate, it is predicted that 84% of non-farmers will own farmland in about 15 years. If the ratio of farmers and non-farmers owning farmland is calculated at this level, it reaches a level similar to the ratio of ‘farmland owners to agricultural workers’ at the time of land reform. In this situation, in relation to the recent farmland ownership system, the Supreme Court in February 2019 issued a ruling that inherited farmland of 10,000 m2 or less is not subject to disposal even if it is not used for farming. Regarding this, there is a critical opinion that it confused the principle of 'farmland farming', so let's take a look at this.
○ (Review of legislation on the ownership and use of farmland)
- This study examines the current regulatory system of the Farmland Act regarding the farmland ownership system, use system, and management system and reviews improvement plans. In addition, in order to improve farmland use, it was decided to find out if there were any unreasonable matters in the legal relationship under the current Farmland Act, namely contract method, contract period, lessee's right to request contract renewal, succession and termination of contract, and review ways to revise or improve it. do. Based on this, it is decided to review the direction of improving the farmland lease system that guarantees the right to use sustainable farmland in the future.
- In principle, farmland can only be owned by farmers (farmers/agricultural corporations) and those who intend to do farming, and leasing is permitted as an exception. In relation to the use of farmland, Farmland Act Article 23 (lease or loan for use of farmland), Article 24 (method of lease or lease for use and confirmation), Article 24-2 (lease period), Article 24-3 (lease contract Adjustment, etc.), Article 25 (Renewal by Implicit), Article 26 (Succession to Lessor’s Status), Article 26-2 (Compulsory Provisions), and Article 27 (Special Cases for Lease of State-owned Farmland and Shared Farmland) Looking at the laws of major foreign countries, similar to Korea, they declare the principle of economic freedom, but develop diversified interpretation theories and recognize various agricultural management methods. We will look into whether these measures can be applied to Korea, and consider alternatives that can appropriately link farmland ownership and farmland use.
○ (Review of agricultural resource conservation and management legislation for sustainable agriculture)
- 「Agricultural Land Act」 is a legal system that regulates farmland ownership system, farmland use system, and farmland management system. Ownership, use, and management of farmland are organically related to each other. Depending on how farmland is designed, a method and system for rational use of farmland are created, and based on this, a farmland management plan can be established and implemented so that agriculture can be operated continuously. Therefore, this study examines the operation status of laws and regulations on the establishment and implementation of farmland management plans to improve farmland management and examines the direction of system improvement. In the implementation of the farmland management plan, the composition and operation of the farmland management committee will be reviewed and improvement plans will be reviewed.
- In relation to the scope of farmland, the problems of the status quo principle will be reviewed, and the feasibility of a legislative alternative that supplementarily applies the status quo principle while maintaining the principle of zoning principle will be reviewed. Regarding the management of farmland information, the farm support department was prepared based on farmers until April 2021, but according to the Enforcement Decree of the Farmland Act, which takes effect on April 2021, farmland ledgers are prepared based on farmland by parcel. Prior to the revision of the Enforcement Decree, the management authority for farmland was determined based on the address of the farmer, but after the revision of the Enforcement Decree, the management authority is determined based on the location of the farmland. We will look at the contents of this and review the system for efficient farmland information management.
Ⅱ. Main Content
▶ Results of the review of the problems of farmland current status and the improvement plan of the land designation system
○ The agricultural land law can be seen as starting from the definition of farmland in its disciplinary system. As the definition of 'farmland', which is subject to the current farmland law, applies the principle of current status as a principle, it can be legally applied in ambiguous cases where it is impossible to determine whether the actual land is used as farmland. There is a problem that causes the uncertainty of
○ The farmland definition clause of the Agricultural Land Act has a problem in that it is unclear whether it corresponds to farmland because it is mixed with the status principle and the designation principle. Due to the ambiguous definition of farmland, if it is ambiguous which category of land belongs to farmland, problems arise in arbitrarily interpreting and applying the Farmland Act. In short, the farmland status principle, which is the regulatory method of the current Farmland Act, has a problem that makes the application and interpretation of the Farmland Act unclear and complicated. In the modern legal system, the identification standard of real estate based on the legal form was institutionalized by being reflected in the registration system, which is a public ledger. Although the land information management system, including the registration system, is based on the form of zoning, the status quo principle took precedence over the zoning principle in the process of forming a special legal system called land reform, which was exceptional during the historical upheaval of war and division. was defined as a principle for identifying However, since the status quo principle based on whether land is actually used for agriculture does not classify farmland based on the objective utility of farmland, it is highly variable and unclear, making it inappropriate as a management standard. Therefore, it is reasonable to set the principle of land designation as the principle standard for identifying farmland, and to apply the principle of status as a supplementary identification standard to the principle of land designation by limiting the case where the land in question is not classified as a specific land category. The same is true of foreign legislation.
○ The definition of the concept of ‘farmland’ serves to limit the scope of application of the Farmland Act, and since it is a starting point for the regulations of the Farmland Act, it should be defined as clearly as possible. The definition of 'farmland' is clearly defined in the entire system of the Farmland Act by reorganizing the Farmland Act in such a way as to first prescribe formal classification terms based on the category of farmland, and to stipulate supplementary application of practical criteria when formal criteria are insufficient. It is desirable to be able to function as an interpretation standard.
▶ Plans to improve farmland ownership and use legislation
○ Ownership and use of farmland can inevitably be separated, and stability of the legal relationship cannot be guaranteed unless a system is in place to ensure proper use of farmland. Structural analysis of the legal relationship between farmland ownership and use to consider how to protect sustainable agriculture and establish a system that enables farmers to operate efficient agricultural management when agricultural resources called farmland are used as rental objects It is necessary to review measures to improve the legislation.
○ In order to rationalize the use of farmland by securing farmland resources managed at the public level, public corporations that manage farmland are given the right to intervene in the farmland transaction market and exercise preemptive rights on farmland, thereby guaranteeing the appropriateness of farmland use. It is necessary to devise a system, establish a long-term plan in consideration of the farming season, and review legislative improvement measures that can introduce the system in stages. Considering the current state of the farmland lease system, it is necessary to design a system that can properly manage farmland lease and make efforts to seek legislative measures.
○ In 2006, for the efficient use of farmland, leasing between private individuals is allowed when consigning to the Korea Rural Community Corporation for lease. Regarding the requirements for consignment lease, it was pointed out that the case where a non-agricultural person acquires farmland and immediately entrusts it to the Rural Community Corporation without any regulations on ownership or cultivation requirements for a certain period of time has become a problem, and it has become a means of speculation. Therefore, it is necessary to improve the system to supplement the related legal requirements.
▶ Farmland Management Legislation Improvement Plan
○ In many laws regulating land use, farmland is diverted to other uses other than farming and farming, and it is frequently used for industry. In the relevant law, it is assumed that consultations have been made in the farmland conversion process under the Farmland Act. In this case, although consultations with the farmland authorities are required at the stage of establishing a specific plan according to individual laws, consultations are discussed after the plan is established. cases appear frequently. It is necessary to revise the provisions on the consultation process in individual laws so that only limited cases where there is an urgent need for public interest, such as the installation of national defense and public service facilities, etc., are discussed. It is left as a future task because individual review on the legislative purpose and necessity of farmland conversion is necessary.
Ⅲ. Usefulness and value of research
▶ Arrangement of basic data for improvement of farmland legislation
○ By arranging basic data for improvement of the Farmland Act through this study, it will be able to be used as basic data to prepare a legal improvement plan based on the legal principles declared in the Farmland Act. It can be used as a reference for identifying legitimate grounds for imposing legal restrictions and obligations on farmland ownership and use, and for finding ways to regulate farmland ownership and use systems with more reasonable means. Regarding the concept of definition of farmland, the current system, which is parallel with the status quo principle and the zoning principle, is reorganized. It can be used as basic data for reorganizing related legal systems.
▶ Prospect the direction of change in the Farmland Act and present a comprehensive legislative improvement plan
○ The importance of resource economy and resource security was highlighted with the Ukrainian war that broke out in February 2022. The status and importance of farmland as a basic public resource that must be managed at the national level for agricultural production as well as the subject of private ownership and disposal cannot be overlooked. By examining the improvement plan of the Farmland Act, it will be a useful reference material for preparing a system for sustainable agriculture, which is dually requested from changes in the natural environment and demographic and social changes.