관습법상 법정지상권의 성립시점에 대한 소고 - 대법원 2012. 10. 18. 선고 2010다52140 전원합의체 판결을 중심으로 -

Abstract

Statutory superficies are systems to resolve a conflict between a land owner and a building owner reasonably but they sometimes bring about a conflict between both owners. These problems are completed with contractual superficies or the land owner is corresponded with the building owner when one party concerned transfers their ownership to the other. In order to establish statutory superficies on common law, land and a building should be owned by the same party when either land or a building is sold. They do not have to be owned by the same party from the beginning. Even though land and a building are not owned by the same party at the time of provisional seizure but the land and the building are owned by the same party when they are sold, changes in rights such as transfer of ownership after provisional seizure become invalid due to prohibitive disposition effects of provisional seizure. If owners of land and a building are different after implementation of execution due to definite seizure of provisional seizure, statutory superficies are not established on common law. That is, when land or a building has provisional seizure and forced sale is in progress as a procedure of definite seizure, it is necessary that requirements of statutory superficies on common law are established not at a change of owners of land and a building but at provisional seizure. The Supreme Court (The Supreme Court 2010Da52140 en banc decision) judged that statutory superficies on common law are established when a land owner and building owner are different due to forced sale of provisional seizure; in judgment if the same party owns land and a building in this case, if the land and building were owned by the same party at the time of establishing provisional seizure, even though the ownership is transferred and owners of the land and a building are different at the time of disposal, the relationship of rights after provisional seizure becomes invalid due to effects of prohibitive disposal of provisional seizure (provisional seizure facility). This judgment is significant because owners should be the same at the time of provisional seizure to establish statutory superficies on common law to own a building as a result.