단독소유 토지 위에 있는 공유건물과 법정지상권- 토지가 처분된 경우 법정지상권의 성립 및 귀속 문제를 중심으로 - (대상판례 : 대법원 2011. 1. 13. 선고 2010다67159 판결 【건물철거등】)

Abstract

This article is a review of the decision of the Supreme Court of Korea - on the remedies of concurrent owners of a building against the land(the site of the building) owner. In Korea, a building and the land on which it is built are legally independent each other(Korean Civil Code 99), which means each could belong to different persons separately even though it does not happen very often. Many difficult issues arise from the “independent rule.” According to the Korean property law, a “legal surface right” is recognized when the building and the land(the site of the building) come to belong to different persons separately after a foreclosure sale by the mortgagee if the building and the land had belonged to the same person before the foreclosure sale(Korean Civil Code 366). The Supreme Court of Korea made a decision on a case of foreclosure sale of the land only by the mortgagee who had mortgage right on the land but did not have any right on the building. In this case only one of the concurrent owners of the building had the ownership of the site before the foreclosure sale. The buyer of the land filed for the demolition of the building. The Supreme Court ruled that ① the land owner cannot seek the demolition because of the legal surface right of the building owner ; and ② the legal surface right belongs to the concurrent owners of the building regardless of the fact that one of them has not had the ownership of the land at all. Although the author agrees with the first part of the ruling on the grant of the legal surface right, he is criticising the second part of the ruling suggesting that it is more reasonable to grant a legal surface right only to the concurrent owner of the building who had been the owner of the land as well before the foreclosure sale.