Guangwen Jiang, A Legal Study on the Conception of Ownership in East Asian Countries: Freedom, Institution, and Rights, Concept and Communication, Vol. 27 (2021), pp.5-56.
<Abstract>
This paper examines how the right of ownership (Korean: 소유권) as a legal concept is constructed and interpreted in the East Asian countries. Since the modern era these countries have imported laws and legal theories from the West, and the concept of ownership, as imported by East Asia, has many overlapping meanings. In analyzing the ownership laws of Korea, China, and Japan, three aspects of ownership can be extracted: rights, institution and freedom. First, ownership establishes a ‘right’ in law, with the meaning and limitations of ownership determined by civil and other laws. Next, the constitution of each country guarantees ownership as an ‘institution’, which is particularly important in socialist China, where ownership is defined primarily as an institution rather than as a right and guaranteed by the constitution. This means that change of ownership can only be accomplished by constitutional amendment, and not by general legislation, Finally, the meaning of ownership goes beyond ‘right' and ‘institution' to encompass the ‘liberty’ which is an essential prerequisite for individuals to ensure their human dignity and realize their intrinsic value. This is also the ultimate reason for guaranteeing ownership, on behalf of everyone, and in this sense ownership therefore has a meaning beyond any specific constitution. The terminology of these three aspects of ownership is also clarified, by proposing the terms ‘legal rights’, ‘constitutional rights’ and ‘ultra-constitutional rights’
<Keywords>
right of ownership, ownership system, institutional guarantee, comparative law, East Asia
Guangwen Jiang, A Legal Study on the Conception of Ownership in East Asian Countries: Freedom, Institution, and Rights, Concept and Communication, Vol. 27 (2021), pp.5-56.
<Abstract>
This paper examines how the right of ownership (Korean: 소유권) as a legal concept is constructed and interpreted in the East Asian countries. Since the modern era these countries have imported laws and legal theories from the West, and the concept of ownership, as imported by East Asia, has many overlapping meanings. In analyzing the ownership laws of Korea, China, and Japan, three aspects of ownership can be extracted: rights, institution and freedom. First, ownership establishes a ‘right’ in law, with the meaning and limitations of ownership determined by civil and other laws. Next, the constitution of each country guarantees ownership as an ‘institution’, which is particularly important in socialist China, where ownership is defined primarily as an institution rather than as a right and guaranteed by the constitution. This means that change of ownership can only be accomplished by constitutional amendment, and not by general legislation, Finally, the meaning of ownership goes beyond ‘right' and ‘institution' to encompass the ‘liberty’ which is an essential prerequisite for individuals to ensure their human dignity and realize their intrinsic value. This is also the ultimate reason for guaranteeing ownership, on behalf of everyone, and in this sense ownership therefore has a meaning beyond any specific constitution. The terminology of these three aspects of ownership is also clarified, by proposing the terms ‘legal rights’, ‘constitutional rights’ and ‘ultra-constitutional rights’
<Keywords>
right of ownership, ownership system, institutional guarantee, comparative law, East Asia