지상물매수청구권 포기약정의 효력

Abstract

The right ti demand for the ground facilities purchase of the land lessee has a special meaning for protecting lessees when leese contract is finished without renewing contract. An enforcement provision 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 Article 652 of the Civil Law, everything goes disadvantageous to the land lessee is considered null and void. Thus in case of the land lease for possessing the ground facilities, the stipulation is null that the land lessee transfers without cost or removals the ground facilities to the land lessor at the expiry of the lease term, because it is usually disadvantageous to the land lessee. However, the stipulation could be valid in the case that be evaluated not disadvantageous to the land lessee considering conditions of the land lease, contexts and various mattes of conclusion of a contract, etc. There is two theories in judging if abandonment stipulation of the right to demand for the ground facilities purchase is null or not just in case ot goes disadvantageous to the land lessee; a separate judgement and a comprehensive judgement. Among two theories, a comprehensive judgement is more appropriate theory, because a comprehensive judgement could be considered 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, 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 tight to demand for the ground facilities go against Treu un Glauben or not by analysing the precedents of the Supreme court.