강제경매로 인한 관습법상 법정지상권의 성립시기 -­ 대법원 2012. 10. 18. 선고 2010다52140 전원합의체판결을 소재로 하여 ­-

Abstract

First, this study examines the history and the grounds for acceptance of statutory superficies for a preliminary work in the customary laws. In the main discussion, it reviews the requirements for establishment of statutory superficies in the customary laws, examines the of the cases and the time when established, centering on the requirements that the building and the land should belong to the same owner, andparticular the time of determining the owner identity of the land and the building in case of seizure or/and temporary seizure. Finally, it tried to determine whether the rulings in concern were appropriate. In order for statutory superficies to be established in the customary law, at the time when in principle either land or building is disposed that is, if the land and the building above the ground belongs to the ownership of the same person at the time of auction, it can meet the requirement. However, in the case of the compulsory auction by temporary seizure, it should be treated in a different way. Namely, in case, it should be determined how to determine the same person’s ownership the land and the building regarding the establishment of statutory superficies in the customary law, according to the time when the temporary seizure comes into force rather than when the selling occurs. It is because in the auction procedure the legal status of the persons concerned is determined on the basis of the time of seizure or provisional seizure, and afterwards the completed registration will be expired by official authority as soon as the sales payment is fully made as long as the buyer does not take over. According to the theory of criterion on the time of sale, it will lead to the conclusion that the statutory superficies are admitted based on the expired registration likewise. So, the theory of the criterion on time when the temporary seizure comes into force is appropriate. Hence, in the compulsory auction caused by the provisional seizure, the viewpoint(attitude) of the ruling in concern can be said to be appropriate because it settled when to determine the owner identity of the land or the building for the establishment of statutory superficies in the customary law, based upon the time when provisional seizure comes into force.