관습법상 법정지상권의 문제점과 개선방안

관습법상 법정지상권의 법적 문제와 개선방안을 검토했다.

This study tries to put together precedents, point out the problems of current system and suggests changes for the better. That is, the problems are not only of interpreting the law but also of the policies of the law. The problems of current system have been mentioned several times throughout this study. And as the essence of Legal Surface Rights of the Customary Law which is the premise of the problems, the controversies have been brought up regarding if Legal Surface Rights of the Customary Law, which have been acknowledged by precedents, could be balanced.

I think it is a great flaw to ignore the equity of a land and a building owners in legislation for not considering particular relationship and widely acknowledging Legal Surface Rights of the Customary Law, given that our law considers lands and buildings different real estates. When it is the case that precedents allow Legal Surface Rights of the Customary Law, there are many opportunities for a person to realize the usage of the land for building conservation before or after dividing dealsㆍcommon properties.

However, putting pressure upon the land owner about existing buildings is a significant infringement on land ownership which is beyond the limit of protecting a building, also is not up to the principal of equity. This wide acceptance for Legal Surface Rights of the Customary Law has much to do with avoidance of using buildings by contracts. Thus in this case, it should not constitute the idea of particular superficies in the name of custom, but should allow the parties involved to have legal effects they want if there is implied consent of rights to use buildings when transfer.

In other words, in the case of changing ownership by the involved parties, since there is a chance⎯and it is actually quite common⎯ to acquire the rights to use the land for the building when tradingㆍgiving either the land or the building, it does not correspond to the purpose of Legal Surface Rights nor the intention of the involved parties to recognize Legal Surface Rights of the Customary Law to this extent.

Along with the ways above, I think the law should have certain regulation articles either suggesting the land and the building be a complete oneness when traded ⎯although they are separate properties⎯ or acknowledging Legal Surface Rights only in the cases of compulsory sales by auction; where the decisions are not made by the involved parties. After all, it is my opinion that these kinds of interpreting or legislating methods for Legal Surface Rights have to satisfy the interests of both involved parties and interested parties, consider both speed and security of deals, and have public good and personal interests in harmony.