慣習法에 의한 法定地上權 大學院 法學科 民事法專攻 = Legal Superficies in Customary Law

부동산 경매에서 임차인의 법적 지위와 권리 보호를 연구한다.

The Korean legal system, 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 situation of change where the land and building is belong is belong to different person. In addition, An owner of a building have no opportunity to contact for making use of land. If an owner of building does not have the right to use of land like as superficies, the right to rent a house and lease, and so on, then his building should be removed. Thus, different individuals can own a piece of land and the property on it, even though the same person once owned both of them.

Naturally, a building owner must secure the right to use a piece of land in order to exercise his or her ownership of the building on it; superficies and the right to rent a house are representative of the right to use a piece of land. A building owner would have no difficulty in exercising the right to use the land when there exists a prior agreement between himself or herself and the landowner. In a case where the building owner did not, however, secure the right to use the land, the landowner is able to claim removal of the building if he or she so wishes.

And if this were the case, the legal rights of the building ower would be seriously undermined, entailing significant losses both socially and economically. Against this backdrop, the Korean law and judiciary precedents recognize legal superficies, provided that certain preconditions are met, in an effort to prevent removal of a building over which land and building owners have no agreement on its usage. Along with special law, Article 305 and 366 of the Korean civil code stipulate regulations related to legal superficies. Aside from these statutory laws, legal superficies have been guaranteed in customary law by precedents.

When the owners of a land and building are not a single person, the building owner is granted the legal superficies over the landowner by customary law, preventing the building from being removed unless there is a special agreement between the two owners on the removal of the building. In the West, a building and land are considered a single entity of real estate whereas both the Korean and Japanese civil codes regard the two as separate portions of real estate. What is problematic is that legal superficies under customary law have been guaranteed on the basis of legal precedents without the existence of clear definitions.

Moreover, legal superficies have yet to be firmly established as law -- unlike other property rights translated into statutory laws at the time of enactment of the Korean civil code. Recently, however, there has been heated debate over the basis and legitimacy of the legal superficies in customary law, and consequently legalization of the legal superficies is being considered by those who are currently working on the revision of the civil code. 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 the building belongs to different person after the official auction sale of the 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 lf a standing tree(§6①), provisional registration 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 one lf 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 the possession of one and the same person is spilt between different person by means of sale or other methods in the future, if there is no previous 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 permitted 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 pert-inence. 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.

The same said judical precedent, which had been judged first in the legal surface rights from the viewpoint of the convention-al law in the history of case law on September 29th, 1916, by the Cho Sun High Court of Justice, said ''in case land and buildings which belonged to an identical person's possession shift each their proprietors as a consequence of buying and selling or other reasons, unless the special contract that remove the build-ings provided, the owner of the buildings acquires surface rights for the site." And the same said judical precedent, which had been judged in the grave site rights from the viewpoint of the conventional law on March 9th, 1927, by the Cho Sun High Court of Justice, admited the conclusion of the grave site rights that"a person who establish a grave has a sort of real right similar to surface rights for the grave site in case the person estab-lishes the grave on the owner's site with his permission." Since then many judical precedents about these rights have been accumulated and made fixed the position for surface rights from the viewpoint of conventional law.

In this treatise, I generalized and analyzed the Supreme Court's judgements sentenced form Cho Sun High Court of Jus-tice to the present. Morev

目次 Ⅰ. 序論 = 1 1. 연구의 목적 = 1 2. 연구의 범위 = 3 3. 용어의 문제 = 4 Ⅱ. 관습법상 법정지상권의 연혁과 기초개념 = 8 1. 연혁 = 8 1) 고대 = 8 2) 근대 = 9 2. 우리 민법의 건물과 토지 소유권 분리의 문제점 = 10 3. 우리 민법과 관습법상 법정지상권 = 12 4. 입법례 = 13 5. 관습법상 법정지상권의 법적 성격 = 15 6. 제도적 타당성 = 16 1) 타당성 부정론 = 16 2) 타당성 긍정론 = 17 7. 이론적 근거 = 18 1) 민법 제305조 유추적용설 = 19 2) 민법 제366조 확장해석론 = 20 3) 법원에 의해 형성되었다는 견해 = 21 4) 관습법론 = 22 Ⅲ. 관습법상 법정지상권의 성립요건 = 24 1. 서설 = 24 2. 성립요건 = 24 1) 토지와 건물의 소유자가 처분 당시에는 동일했을 것 = 24 (1) 동일 소유 = 25 (2) 동일 소유의 시기 = 36 2) 일정 원인에 의한 귀속 처분 = 39 (1) 매매 기타의 원인 = 40 (2) 토지와 건물의 소유자가 달라질 것 = 47 3) 토지이용권의 認否에 관한 합의가 없을 것 = 47 (1) 건물철거특약의 유무 = 48 (2) 입증책임 = 51 Ⅳ. 관습법상 법정지상권의 내용 = 52 1. 서설 = 52 2. 범위 = 53 3. 관련판례 = 55 1) 대판 2003.12.18. 98다43601 전원합의체 판결 = 55 (1) 사건의 개요 = 55 (2) 다수의견 = 57 (3) 다수의견에 대한 보충의견 = 58 (4) 반대의견 = 58 (5) 본 판결의 검토 = 59 4.