法定地上權의 問題點에 관한 硏究 = (A) Study on the Problems of a Legal Superfices

다국어 초록 (Multilingual Abstract)

There is the one case of effectiveness of the statutory superficies, for example, the superficies is to be effective when the lands, buildings or standing trees of the same owner will be changed ownership later on respectively by concerned regulation. Another case is that even if we don't have requirement for the statutory superficies regulated civil law, the statutory superficies of common law can be effective. And there is the right of the tomb superficies in custom, which is quite similar to estate. I've analyzed each and every point of problems from precedents and explained theories and now can give you the improvements.
Our nation's the statutory superficies regulate the building or standing trees are treated as immovable property that does not include lands, and this is the problem. I would like to discuss about the statutory superficies not regulated by civil law such as the statutory superficies of mortgage, the statutory superficies of the right of lease, the statutory superficies of the law of standing trees.
Firstly, the regulations of law that can confirm the condition of configuration and the method of public announcements are actually very insufficient, when looking up the statutory superficies of the right of mortgage.
There is the case that court didn't accept the statutory superficies just because not only it could decrease the price of the Hand but also do damage to those who mortgaged that land, after mortgaging land and then constructing buildings controlled by the statutory superficies. I do not believe this is not the right one because the basic intention of the statutory superficies in civil law is to protect social-economical loss from removing buildings. In order to settle this problem, the need of making law for protection buildings is urgent, considering that buildings themselves can be the economical resource of our nation.
Secondly, the matter I would like to discuss is the statutory superficies of the right of lease. It's been made recently in the current civil law. Considering that it can allow those who have the right of lease to buy and sell potential land, it's importance is good to be stressed, but due to the fact that it is made UP of civil law chapter 305, like the right of mortgage, I still think that it is not enough to settle law problem. Therefore, sophisticated theories by many professors, and precedents by Supreme Court are urgently needed.
Thirdly, the matter I would like to discuss is the statutory superficies of standing trees law. There are only thirty kinds of standing trees on the ground that can be protected by law. Moreover, only seven kinds of wild trees out of the thirty are entitled to get protection. Therefore, it is desirable that government must extend the protection of law to save owners with trees that are away from the protection by law.
Thestatutory superficies of common law exists only in Korea, which is not defined in scientific way. Some precedents say that the statutory superficies is admitted by the special attribute in which buildings always go with lands, and the economical need for people to estimate buildings. However, government must pay close attention, for instance allowing registration as long as precedents admit the statutory superficies of common law, not to do harm to bona-fide third party, due to insufficient public notice.
Lastly, the right of the tomb superficies in custom is sort of a real right to possess a grave on land owned by others. The right of the tomb superficies in custom is usually considered as traditionally good and beautiful custom because graves symbolize worshiping ancestors. However, many people want more careful legal review in case of taking a grave without permission of owner of the land, and legal argument because of change of owner of land, and the matter brought up in terms of cultivation of land and the protection of environment.
Consequently, some problems with the statutory superficies are inevitable task so long as civil law admits the definition of the statutory superficies as it is. Old precedents were inclined to limit the statutory superficies, but recent precedents acknowledge fortification of land utilization, and adjustment of the statutory superficies for settlement of defects. Somehow, I would say more clear and detailed legal states must be written.

목차 (Table of Contents)

• 목차 = ⅰ
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 方法 및 範圍 = 3
• 第2章 法定地上權에 關한 檢討 = 6
• 第1節 民法上의 法定地上權 種類 = 6
• 第2節 抵當權上의 法定地上權의 形態와 成立要件·判例 = 6
• 1. 槪要 = 6
• 2. 成立要件 = 8
• 第3節 傳貰權의 法定地上權 = 25
• 1. 槪要 = 25
• 2. 成立要件 = 27
• 第4節 立木法의 法定地上權 = 29
• 1. 槪要 = 29
• 2. 咸立要件 = 30
• 第3章 慣習法의 法定地上權 = 32
• 1. 槪要 = 32
• 2. 成立要件 = 40
• 3. 判例의 態度 = 49
• 第4章 墳墓基地權 = 64
• 1. 槪要 = 64
• 2. 成立要件 = 65
• 3. 公示 = 67
• 4. 內容 = 68
• 第5章 法定地上權의 成立時期와 效力 = 70
• 第1節 成立時期 = 70
• 1. 任意競賣의 境遇 = 71
• 2. 强制競賣의 境遇 = 71
• 第2節 效力 = 72
• 1. 範圍 = 72
• 2. 地料 = 73
• 3. 存續期間 = 75
• 4. 公示와 對抗力 = 77
• 5. 處分과 消滅 = 79
• 第6章 問題點과 改善方案 = 83
• 1. 抵當權의 法定地上權 = 83
• 2. 傳貰權의 法定地上權 = 84
• 3. 立木法의 法定地上權 = 84
• 4. 慣習法의 法定地上權 = 84
• 5. 墳墓基地權 = 85
• 參考文獻 = 86
• ABSTRACT = 87