관습법상 법정지상권의 인정근거와 필요성에 관한 비판적 고찰

Abstract

Suppose you have a piece of land and a building on it and you sell one of them. In this case it is natural that the parties make a contract about using of the land. But if they didn’t do so, what would be the consequence? － The removal of the building? Under the Korean Civil Law system the answer is “No” because of the so-called the Superficies based on Customary Law. The major of literatures on this right, however, has been opposite to this case law since the Supreme Court of Korea declared this right as based on Customary Law in 1960. The main points of this criticism can be summarized like this. On the one hand they argue that the Supreme Court has created a right without legal ground because they think there has never been such a custom. On the other hand, they asserted that it is necessary that there should be such a right to evade removal of the building. But this assertion of the major opinion seems to be problematic. Firstly, they look over the fact that such customary law once existed in Korea when it is found and declared as such by Higher Court of Chosun in 1916. Secondly, they seem inconsistent. If they want to keep their argument that superficies is urgent for protection of the building, they have not only to just declare “there can be no superficies based on customary law”, but to suggest some other grounds for the right which can frustrate the landowner demanding removal of the building. I think problems of the major opinion can be overcome by this article. It makes clear that such a customary law had disappeared around 1960 through evidences, and that the building can be protected not by arguing superficies but by admitting lease contract through interpretation of the intention of the parties.