공유부동산과 법정지상권의 성립 - 지상권 설정의 용인의사와 공유지분에 대한 용익물권 설정의 한계를 중심으로 -

Abstract

While it cannot be denied that statutory superficies serves the function of ensuring the continued existence of a building, its significance and legitimacy should be found in the fact that it is an institution that realizes the presumed intention of the parties involved. The issue of establishing statutory superficies in joint-owned real estate should also fundamentally be resolved in the direction of ascertaining such presumed intentions. The general requirements for the establishment of statutory superficies include 'the same person owning the land and the above-ground building, and a lawful cause for the change of ownership of the land and the above-ground building,' but precedents of the Korean Supreme Court also examine whether there is a consent to the establishment of superficies among the co-owners and whether the establishment of superficies on the land results in unfair consequences for other co-owners. The same person's ownership requirement is also interpreted based on whether the co-owners of the land and the building 'as a whole' match. A critical review of these existing precedents reveals that the issue of establishing statutory superficies in joint-owned real estate should be resolved by considering both the consent for the establishment of superficies and the limits of usufructuary real right on joint-owned share simultaneously. This means specifically that: 1. The consent for the establishment of superficies should not be simplistically construed as a mere tolerance for the building's presence. Instead, it is rooted in an active intention to transfer the land's beneficial value to the building, involving the relinquishment of direct use and benefits of the entire land under joint ownership and the delegation of disposal rights to other co-owners—a recognition typically reserved for highly exceptional circumstances. 2. The establishment of superficies on joint-owned real estate constitutes a disposal act regarding the property. Therefore, it is not sufficient to merely demonstrate the intention of the majority owner of the land share to wish for the continued existence of the building; it is necessary to confirm the unanimous consent of all land co-owners. 3. It's generally not possible to establish statutory superficies on a jointly-owned share, due to the constraints in setting up usufructuary real right on such properties, and the same person's ownership requirement must also be judged based on whether all co-owners of the land and the building are in agreement.