관습조사보고서의 지상권 부분 기록에 대한 비판적 고찰

Abstract

In 1910,“the Report of precolonial Korean Customary Civil Law”(hereinafter ‘PKCL’) was published. It was written in Japanese language by Japanese colonial government. At first, the sum total number of PKCL were 206 items, however, at the end of the colonial rule (1945) the number of PKCL became over thousand items by continuous supplementary measures. There has been a big debate about whether so called PKCL can be genuine traditional customary law or it was newly created one. Korean legal academic community is very doubtful about the truthfulness of PKCL. However, Supreme Court of Korea (hereinafter ‘SCK’) has considered PKCL as the only believable legal sources. ‘Customary superficies (慣習法上 法定地上權)’, according to the legal precedents, endows a building owner the right of superficies even without agreement with a land owner. It was suggested that the main function of this customary right is to protect public interest inherent in the existence of a building. When the ownership of land and the building thereon, once attributed to the same owner, belong to different owners due to whatever legal reasons including sale or public auction, the building owner can claim the right of customary superficies against the land owner so long as there is no contract to tear down the building. This is specific legal device to protect building owner in a jurisdiction where the ownership of land and a building can be separated. The customary superficies was first acknowledged in 1916 by Chosen High Court, which was highest court during colonial period (1910∼1945). Since then, there has been much debate over whether or not such custom had existed in premodern Korea. In particular, there has been heavy criticism on conferring too strong right to a building owner in case of sale when he or she could have made a contract with a land owner to secure relevant right to use land. In this paper the authors tried to show that so called‘Customary superficies’is one of the example of invented legal category by Japanese colonial Government.