토지와 건물의 이원체계에서의 권리충돌

Abstract

Civil Code Article 99 prescribes that the above land and fixtures to real estate. That system maintains a separat eownership of land and buildings. But what is thecurrent law on the building has no clear standard. It also passes the ownership ofthe land and buildings may be conflicts. As a result of it, grammaticalinterpretation is sticked to, and Blanket Auction right’s valid scope is admittedpartly unlike the purpose of legislation. This has been criticized because social andeconomical request on building forced removal prevention and the concernedpersons’ profits like a mortgagee can’t be reflected. As a narrow analysis onexisting common theory in Korea and Blanket Auction right's scope is maintainedas it is, the method for Blanket Auction right's scope expansion is requiredactually. The interested's statuses for building preservation are accepted in abuilding owner or a mortgagee's position and the conflict between a mortgage anda usufructuary right should be solved. In claim for auction, anyone, being abuilding owner, may have Blanket auction executing right claim which needs fortotal auction claim for a mortgagee and a mortgage to reject it. An occasion asthis, a building owner have purchase offering right for a auctioneer and then theproblems that regulate among building preservation, a mortgage and ausufructuary right will be solved reasonably. Without civil law article 365'srevision, interpretation theory can’t be acquired. A legislative measure is needed toidentify it. But this will be solved through not a mortgage‘s right enforcement butreasonable right allotment to a mortgage right in a usufructuary position. The Supreme Court of Korea has negated the purchase claims of the material onthe land of a lessee, superficiary and a rightful person of Jeonse right if their renewal claim cannot be accepted. So, the Court accepts the purchase claim of thematerial on the land only if it accepts renewal claim. However, these claims shouldbe separately treated in legal decisions because the renewal claim guarantees ausufructuary right in continuing lease, and because the purchase claim of thematerial on the land guarantees the collection of invested capital in ending lease. In spite of this legal logic, the Supreme Court holds its own opinions in previousdecisions to protect owner’s interest, such as the interests of a leaseholder, arightful person of creation of superficies, a rightful person of creation of Jeonseright instead of a usufructuary’s interest, such as the interests of a lessee, asuperficiary and Jeonse right holder. However, this attitude of the Court is againstmodern civil law principles, such as non-absolute protection of ownershipprinciple, principle of fairness, prohibition of rights abuses in that it overprotectsinterests of owners. Therefore, we need to make a new interpretation on a conflict between ownershipand a usufructuary right to protect the purchase claim of the material on the landof lessee and to guarantee effective use rights of property and lessee’s opportunityto collect invested capital. So, the Supreme Court should change its opinions toexclude the interdependency between the purchase claim of the material on theland and renewal claim.