지상물매수청구권 포기약정의 효력

Abstract

The right to demand for the ground facilities purchase of the land lessee has a special meaning of protecting the right of land lease. An enforcement provision-the Article 652 of the Civil Law-is prepared to secure the effectiveness of the right to demand for the ground facilities purchase. According to this provision, everything that goes disadvantageous to the land lessee as a stipulation against the provision of the Article 643 of the Civil Law stipulating the right to demand for the ground facilities purchase is considered null and void. So in case of the land lease for possessing the ground facilities, the stipulation is null that the land lessee transfers or removals the ground facilities to the land lessor at the expiry of the lease term because it is generally disadvantageous to the land lessee. However, the stipulation can be valid in the case that the abandonment stipulation is not virtually disadvantageous to the land lessee upon full consideration of conditions of the land lease, contexts and various matters of conclusion of a contract, etc. In general, there are two theories in judging if abandonment stipulation of the right to demand for the ground facilities purchase is null or not just in case it goes disadvantageous to the land lessee: a separate judgment theory and a comprehensive judgment theory. But the latter is regarded as more appropriate in terms of the concrete validity in that the theory claims a comprehensive judgment in consideration of various factors including contexts such as details of conclusion of a contract, conditions of a contract like the period of a contract and rent, and the background in which abandonment stipulation of the purchase claim right is concluded, etc. This paper examined not only various factors to consider concretely in judging whether abandonment stipulation of the right to demand for the ground facilities purchase made goes virtually disadvantageous to the land lessee or not, but also whether both termination of mutual agreement and abandonment stipulation of the right to demand for the ground facilities purchase made at the same time, and exercising the purchase claim right after abandonment stipulation of the right to demand for the ground facilities purchase go against Treu und Glauben or not.