관습법상 법정지상권의 성립여부 판단시점에 관한 연구- 대법원 2012. 10. 18. 선고 2010다52140 전원합의체판결을 중심으로 -

Abstract

The case law has recognized the statutory superficies on custom law in the event of different owners of a land and building due to forced sale by auction for the ownership of the building. In order for the statutory superficies on custom law to constitute, first the owner of a land and building should be identical. In forced sale by auction, provisional seizure may have occurred before the decision to begin the forced sale. Such provisional seizure has an injunctive effect. Therefore, it should be viewed if the owner of land and the owner of building are the same person from the point of provisional seizure. The Supreme Court 2012, 10, 18 Pronouncement 2010Da52140 Decision reviewed in this study, declared that such a foresaid provisional seizure should be the point of judgment. In addition, the Supreme Court 2013, 4 11 Pronouncement 2009Da62059 Ruling stated that if a mortgage was established before seizure or provisional seizure, the mortgage point should be the baseline of judgment. More work will be necessary to further standardize and objectify the requirement to constitute the statutory superficies on custom law.