慣習法上의 法定地上權

토지와 건물 소유자가 다른 경우의 관습법상 법정지상권을 연구했다.

Our civil code, unlike the legislation of European countries which is based on the principle of Roman law, regard the land and building as a separate and independent real estate. According to this, There is a situatio n of change where the land and building is belong to different person. In addition, An owner of a building have no opportunity to contract for ma king use of land. If an owner of a building does not have the right to u se of land like as superficies, the right to rent a house and lease, and so on, then his building should be removed. Does this building which is loss of a foundation shall be cleared away?

It is used to be thought that this situation is absurdity from the point of view of law-effect and economy. Thus, in order to rectificate this problem, the existing law permit the right of legal superficies for the owner of building at our civil code §366 and §305.

That is, Where the land and t he building belongs to different person after the official auction sale of th e property mortgaged, the owner Of the land is seemd to have created a superficies for the owner of the building and when the owner of the land is altered after the building was sett-ed up the right of the rent, in addition, the law of a standing tree(§6Q①), provisional regisiration mortgage, etc.(§10), a security of factory(§31①), a foundation security of mining (§5).

By the way, unlikely civil code and these particular law, there is so called legal superficies in custom what is now generally considered as on e of the most epoch-making decisions in the history of korean judical precedents, the Chosun High Court ruled on September 29th. 1919. This means that when the land and the building which have been in t he possession of one and the same person is spilt between different pers on by means of sale or other methods in the future, if there is no previo us special contract, then the owner of the building is acquired the legal superficies in customary law to the owner of the land.

Because legal superficies is perrnitted by an civil code to a specific proviso, there is no denunciation. But legal superficies in customary law, the other way, has many question whether or not about the pertinence. By the way, on the other hand a real condition, since then many judical precedents about this right have been accumulated and made fixed the POsition from the viewpoint of the conventional law. By this cause, this paper attempt to theoretical setting by work on t he study about an angle of vision of the conventional law and present direction in law-making political side with an opinion of theory.

So, for t his aim, in chapter I , I made a short sketch about this paper's object, range, method, etc. In chapter II , reasearched the institutional significance about the legal superficies in customary law. In chapter Ⅲ,Ⅳ,Ⅴ,Ⅵ, investigated material condition, contents, institutional registration, opposing power, disposition, etc. In conclusion ChapterⅦ, attempt-ed to betterment the same institution's directions and theoretical repletion. This paper inquire into centering around the judical precedent, futher more refer the literature on this subject by combination documentary met hod of study and that of law-interpretation.