法定地上權에 관한 硏究 = (A) Study on the Legal Superficies

다국어 초록 (Multilingual Abstract)

Legal Superficies is made to protect national economy and public interest under the Korean legal system which regards land and a house on it as separate real estates in case that either the land or the house on it belongs to a different person after a public auction of the property mortgaged.
It is a special system setting not by a private contract but by legal requirement.
The patterns of these Legal Superficies are as follows.
① In case that land with a building belongs to the same person and a contract of chonsegwon is made on the building, the special successor in title of the land ownership is deemed to have created legal superficies(civil code art 305 ①).
② Where land and a building on it belong to a different person after a puble auction of the property mortgaged, an owner of the land is deemed to have created superficies for an owner of the building (civil code art 366).
③ In case that land with a building belongs to the same person, and a different person obtains the ownership of the land or registration on provisional registration on the same land with the building according to the law for setting mortgage by provisional registration, legal superficies on the land is deemed to be set for the purpose of owning the building. (the law for setting mortgage by provisional registration, article 10).
④ Where land and trees on it belong to a different person after a public auction the trees on it or by other reasons, an owner of the land is deemed to have created superficies for an owner of the trees (the law about the trees on the land, article 6).
⑤ In case that either the land or the building on it belongs to a different person after selling of the land or the building or by other reasons, while land with a building belongs to the same person, it is deemed to be Legal Superficies under customary law.
However, these Legal Superficies cause the problem of the protection of the owner of the land. That is the problem of harmony of private interest and public interest.
Therefore, this system which excessively restricts the ownership of the land should be recognized as the complementary system and must not expand the application of it.
It is necessary to apply only in case of having clear requirements in view of harmony of public interest and private interest.
To study this, I confine the scope of this study to the theoretical view and case study using literature approach considering many limitations in other approaches.
In Chapter 2, I examine the history of Legal Superficies in terms of legal history. The base of allowing Legal Superficies put the repect for the thought of persons concerned first within public interest.
In Chapter 3, I examine legal superficies after a public auction of the property mortgaged.
① Concerning legal charateristics of legal superficies under art 366 of civil code,
if an owner of the land and an owner of the building reach an agreement about using the land after the public auction of the land or the building, it is deemed for him to abandon his legal superficies on the land.
② The existing period of the building must be continued from the point of setting mortgage to the time to tear down the building on it.
③ In case that the building is built up again on it, legal superficies is recognized on the new building.
In Chapter 4, I review some problems, the theory of making law, and the theory of Legal Superficies under customary law.
The problems are as follows.
First, it is easy to sacrifice an owner of the land because of too broad application of this law.
Second, it is not perfect to make public notification about the real estate.
Third, it is possible to give damage to the third person.
Fourth, it makes legal relationship complicated.
In the theory of its interpretation, the need of Legal Superficies under customary law should be recognized, but the scope must be restricted strictly. And the opinion of persons concerned should be respected at first.
In case of having Legal Superficies depending on the opinion of persons concerned, it is right not to allow Legal Superficies under customary law. (for example, buying and selling, donation)
I review Legal Superficies in view of the theory of making law.
① Even though land and a building on it are separate estate, it is necessary to transfer it as one property. Finally, it is necessary to make law in order that the land and the building on it may be considered as one estate.
② In case that the owner of the land builds up a building on it, it is necessary to make law in order that the owner of the land may set self-Superficies for himself for the good use of the land.
In summary, the point is that the theory of making law and the theory of Legal Superficies approach to the direction of the harmony of public interest and private interest.
In Chapter 5, I review the grounds of the recognition of Legal Superficies for chonsegwon protection, Legal Superficies about the trees on the land, and Legal Superficies after setting a mortgage by provisional registration.
In Legal Superficies for chonsegwon protection, the ground of the recognition should be in the protection of the owner of chonsegwon rather than public interest.
On the contrary, in Legal Superficies after setting a mortgage by provisional registration, it should be in the socioeconomic protection.

목차 (Table of Contents)

• 第 1 章 序論 = 1
• 第 1 節 硏究目的 = 1
• 第 2 節 硏究內容 및 方法 = 3
• 第 2 章 法定地上權 沿革과 認定理由 = 5
• 第 1 節 法定地上權의 沿革 = 5
• Ⅰ. 沿革 = 5
• Ⅱ. 우리나라의 法制와 法定地上權 = 8
• 第 2 節 法定地上權의 認定理由 = 12
• 第 3 章 抵當權實行에 의한 法定地上權 = 16
• 第 1 節 序說 = 16
• 第 2 節 法的 性格 = 16
• Ⅰ. 否定說 = 17
• Ⅱ. 肯定說 = 17
• Ⅲ. 折衷說 = 18
• Ⅳ. 檢討 = 19
• 第 3 節 成立要件 = 19
• Ⅰ. 抵當權設定 當時에 建物이 存在할 것 = 20
• Ⅱ. 土地와 建物의 所有者의 同一性 = 38
• Ⅲ. 抵當權 設定 = 53
• Ⅳ. 競賣로 인한 建物과 土地에 대한 所有의 分離 = 54
• 第 4 節 內容 = 56
• Ⅰ. 成立과 登記 = 57
• Ⅱ. 內容 = 60
• 第 5 節 讓渡性 = 67
• Ⅰ. 土地의 讓渡가 있는 경우 = 68
• Ⅱ. 建物所有權 移轉과 法定地上權의 歸屬 = 68
• 第 4 章 慣習法上의 法定地上權 = 77
• 第 1 節 序說 = 77
• 第 2 節 發生過程과 妥當性 = 78
• Ⅰ. 沿革 = 78
• Ⅱ. 性格 = 79
• Ⅲ. 制度的 妥當性 = 79
• Ⅳ. 理論的 根據 = 81
• 第 3 節 成立要件 = 84
• Ⅰ. 同一人의 所有 = 85
• Ⅱ. 賣買 등으로 인한 歸屬의 分離 = 102
• Ⅲ. 建物撤去의 不存在 = 105
• 第 4 節 內容 = 108
• Ⅰ. 序說 = 108
• Ⅱ. 成立時期 = 108
• Ⅲ. 範圍 = 111
• Ⅳ. 存續期間 = 112
• Ⅴ. 地料 = 113
• Ⅵ. 登記와 對抗力 = 116
• 第 5 節 讓渡性 = 121
• Ⅰ. 序說 = 121
• Ⅱ. 慣習法上의 法定地上權과 建物의 讓渡 = 122
• 第 6 節 問題點 = 125
• Ⅰ. 問題點 = 125
• Ⅱ. 立法論·解釋論 = 129
• 第 5 章 기타의 法定地上權 = 132
• 第 1 節 傳貰權保護를 위한 法定地上權 = 132
• 第 2 節 立木에 관한 法定地上權 = 139
• 第 3 節 假登記擔保 實行에 의한 法定地上權 = 141
• 第 6 章 結論 = 145
• 參考文獻 = 149
• ABSTRACT = 155