경계를 침범한 건축에 대한 민법개정안 검토

Abstract

Architecture invading boundary of land refers to structures or protruding parts of buildings invade neighboring land. In this situation, Ministry of Justice established the civil law revising special committee, and the Civil Law Amendment made by this committee was pre-announced in 2004 and 2013. The amendment suggested establishment of Article 242 Clause 2 about architecture invading boundary. However, the amendment couldn't be legislated, and there are still ongoing disputes whether buildings invading boundary of others' land should be torn down. The legislative solution on this matter is not clearly defined yet. The Supreme Court adopts the legal solution about the claim of tearing down buildings invading boundary to the general principles of claim to repossess, but limits the exercise of claim to repossess by legal principles of right abuse by exceptionally considering specific circumstances in the cases that the excercise of claim to repossess became problems. The purpose of this study is to investigate the validity of legal solution by the Civil Law Amendment about the claim of tearing down buildings invading boundary, and to propose problems of the Civil Law Amendment that runs counter to the fact that the excercise of claim to repossess does not require the opposite party's intentionㆍnegligence in the current civil law of Korea, as well as logical solution for the matter.