토지임차인이 행사하는 지상물매수청구권에관한 일고

Abstract

There are three articles in the Korean Civil Act, in connection with a land lessee’s claim to purchase on a building. According to Article 643, “The provisions of Article 283 shall apply mutatis mutandis to buildings, trees, or any other facilities on land remaining after the expiration of the period of the lease of land where the object is to own a building or any other structure, or is for planting, collecting salt, and stock farming.” The provisions of Article 283 state that “If buildings, other structures, or trees remain, on termination of the superficies, the superficiary may demand renewal of the contract.” and “If the settlor of the superficies does not want to renew the contract, the superficiary may ask the settlor of the superficies to purchase the structures or trees under the preceding paragraph at a reasonable price.” In addition, Article 652 provides that “Any agreement entered by the parties in contravention of the provisions of Articles 627, 628, 631, 635, 638, 640, 641, and 643 through 647 which is unfavorable to either the lessee or sub-lessee shall be void.” In this Article, three leading judicial precedents concerning the requirement for establishment and effectiveness of a land lessee’s claim to purchase on a building are concretely examined, according to the hierarchy of literally interpretation on the top, systematic interpretation in between, and teleological interpretation at the bottom, based on the conventional scholarly views and typical judicial precedents about methods for interpretation of law. In particular, this Article demonstrates that judicial precedents are not appropriate, with regard to the case a building is constructed on lessee’s land or other’s land as well as lessor’s land and the case prior to the expiration of the period of the lease of land, a lessor sell the lease land concerned discretionally.