토지공개념에 입각한 토지소유권의 상하(上下) 범위 고찰

토지공개념에 입각해 토지소유권의 지상·지하 범위를 고찰했다.

A consulting company expects the global drone market will grow by about 10 times from 2.9 billion dollars in 2016 to 29.1 billion dollars in 2030. On the other hand, the drone industry of Korea is sluggish. As an example, the drone industry of Korea has only 60% of core technologies about drone which a world-class level has. And the stagnation of the drone industry of Korea results from various reasons. I’d like to choose as one of the most important reasons, among other things, the governments excessively tight regulations of drone flying. And the provision of Article 212 of the Korean Civil Code seems to lie at the bottom of the governments excessively tight regulations of drone flying.

According to the provision of Article 212 of the Korean Civil Code, individual land ownership ranges from the end of the underground to the end of the airspace, if he or she has a legitimate profit. In particular, the provision of Article 212 of the Korean Civil Code uses an abstract and indefinite expression like ‘legitimate profit’. As a result, it causes an interpretative controversy over the meaning of the expression. It comes down to the situation that it is very difficult for other people than land owner to use the airspace and underground of the land concerned. Of course, all other laws are to be interpreted in accordance with the constitution.

The Constitution of the Republic of Korea admits the Public Concept of Land Ownership under the provisions of Article 23, Article 37, Article 122, etc. The Public Concept of Land Ownership boils down to one: a stricter social and public restriction on land property rights. Land property rights have a few characteristics different from other private property rights. For instance, land is limited in amount, irreplaceable, and the root of production of goods. Considering these characteristics, a stricter social and public restriction is to be imposed on land property rights than other private property rights.

In this Article, first, an interpretative examination, based on the Public Concept of Land Ownership, is made of scholarly views and judicial precedents concerning the provision of Article 212 of the Korean Civil Code. Second, in connection with the range of underground to airspace of land ownership, a new legislative alternative is proposed.