관습법상 법정지상권에 관한 일고

Abstract

Korean Civil Law prescribes two kinds of statutory superficies. Korean Civil Law Article 305 stipulates that in a case where land with a building thereon belongs to one and the same person, and chonsegwon is created on the building, the limited successor in title of the land ownership, is deemed to have created legal superficies for the settlor of chonsegwon. Korean Civil Law Article 366 stipulates that, where the land and the building on it belong to different persons by reason of the auction sale of the mortgaged property, the owner of the land is deemed to have created a superficies for the owner of the building. In addition to these two kinds, the Korean Supreme Court recognizes another type of statutory superficies under the name of the statutory superficies of customary law. An owner of a building acquires such statutory superficies of customary law where a land and a building which used to be owned by the same person belong to different persons due to sale, auction, or other legal causes, of either land or building. Current legal superficies under customary system has affirmative function of socil, economic profit realization but got problem as well. The first, by theoretical grounds doubt about existence of customary. The second, cause insecure promote of trade safety. The third, by land usufruct produce a consequence of recognize only a superficies, be legal unfair both land and building owner about contract of land usufruct on existence and nonexistence of contracting. The Fourth, abuse possibility by fraudulent act. Finally, be estrange of general law awareness and phases of the times and so forth in nowadays.