관습법상 법정지상권에 관한 연구

Abstract

This paper aims to suggest a new direction and review problem on form and effect of the Legal Superficies in Customary Law and investigate the legislation which is currently discussed and present a improvement program. Under the Korean civic law contrary to laws of the Europe various country, the land and building are regarded as separate and independent real estate in the Legal Superficies as Customary Law(Clause 1, Art. 99 of the civil code, Clause 1, Art. 14 of the Real Estate Registration Law). And the building is a product which the judicial precedent make in order to secure the value of the building because the building has no ability as a structure if it does not accompany the use relationship of a certain land from the nature. Although the Legal Superficies as Customary Law is established and recognized as even currently Supreme Court judicial precedent since the Chosun Supreme Court judgment, it is becoming the problem in various respects. Especially, the criticism is proposed that recognition extend of the Legal Superficies as Customary Law which the judicial precedent recognizes covers so wide in comparison acknowledge the Legal Superficies only in case of execution of mortgage in the current civil law. Despite of the fact that the case of a compulsion auction?the common property division by the court of justice?the public sale(forced sale) by disposition for failure in payment in national tax will be able to recognize unavoidably, there are a variety of problem like the unjust limitation about the land owner's ownership, the restriction of private autonomy and the infringement about safety of transactions to authorize to the extent of case of common property division by the trade?donation?discussion. Additionally, the doubt about ground such as the question about theoretical ground the doubt, the complexity of the law relations, the protective problem a third person in good faith by imperfection of a public notice and the indefiniteness of the conditions is proposed. And the Civil Law Revision Special Section Committee meeting state a provision which codifies the Legal Superficies in Customary Law under 2 of Article 279 in a revised bill of Korea Civil Law because the legislation discussion on the Legal Superficies under Customary Law recently accomplished This paper would draw a conclusion from the opinion that a protection of the land usufructuary right for the ground building of the Legal Superficies as Customary Law does not damage the institutional significance and how the system is reconstructed. First, it is valid to understand the special Property right as the foundation of the Legal Superficies as Customary Law extensively interprets the regulation of the Provision 366 of the Korean Civil Code. Second, in case building owner is different from land owner with trade?donation must except from an essential condition of the Legal Superficies under Customary Law because it is not reasonable to force the land owner to sacrifice unjustly. Thirdly, the registration is not necessary in compliance with the regulation of the Provision 187 of the Korean Civil Code since the Legal Superficies under Customary Law is formed by a customary law. Thus, The building owner will be able to assert not only the land owner when acquiring the Legal Superficies but a grantee of a land ownership. Only, when disposes in this third person, the building owner must register in compliance with Article 187 a conditional clause The fourth, since the building right of ownership and the Legal Superficies under Customary Law are the independent real right, both of them must announce publicly a registration separately. The fifth, it is to solve the criticism legislatively about judicial precedent in the meantime to establish a revised bill 2 of Article 279(the Legal Superficies) as for legislation. Only, it is proper to amend a presumed provision-'regard'.