부동산경매절차에서 법정지상권성립여부에 관한연구 : 대법원 판례 및 낙찰사례 중심으로

부동산 경매에서 법정지상권의 성립 여부를 판례와 사례로 분석한다.

The Established of legal superficies("the possible existence of legal superficies") is the most important in the procedures of real estate auctions. This study aims to analyze real estates and the highest bid price of legal superficies all over the country and examine the Established of legal superficies using representative objects knocked down in the Supreme Court cases and the Gwangju District Court. First, total cases of articles sold by auctions have been decreased annually nationwide and apartments have shown a large decrease annually compared with other objects.

Second, the percentage of regional real estate auctions and legal superficies objects accounts for mean 10.74% and legal superficies is less than 10% in the capital region, whereas regions show percentage difference of around 20%. Third, it was found in the Supreme Court cases that there was no established standards on legal superficies and the past decisions of the Supreme Court were reversed even in the same cases. Moreover, since precedents have been occasionally changed in trials at the Supreme Court, it is very difficult to judge the Established of legal superficies by precedents.

However, as the Established of legal superficies is finally confirmed through court judgements, the analysis of the Supreme Court cases are the most important. Thus, bidders should take legal experts' advice or a prudent attitude in bidding. Finally, the Established of legal superficies and problems were analyzed in representative bid cases made in the Gwangju District Court. Many of the cases did not reach the least standards of the Established conditions of legal superficies because buildings were constructed after the settlement of the first mortgage or legal superficies or were unregistered or unauthorized.

It is expected that this study will contribute to the analysis of the Established of legal superficies which is thought as a pitfall of real estate auctions and the solution of money, time, and mental damages of the persons interested caused by "the possible existence of legal superficies".