집합건물의 대지사용권의 행사와 「민법」제263조의 적용

Abstract

The Aggregate Buildings Law enact a 'Land Area of Building' and a 'Right to use Land Area'(Item 5, 6 of Article 2), but not a 'Right of Land Area'. However, The Real Estate Registry Law state that as a Right to use Land Area, which has Divided Owner in oder to own Exclusively Owned Part, 'Right of Land Area' can not be separated from the Building to dispose, and ask a person this Right to register. Thus, the Aggregate Buildings Law state a use and beneficiary right of common parts of the Building, but not that of Land Area(Article 11, 17). Than, how can distinguish between 'Right to use Land Area' of the 'Aggregate Buildings Law' and 'Right of Land Area' of the 'Real Estate Registry Law', and for using and profiting of land area of a building is not only this article, but also 263 of the 'Civil Law'. In this paper, define that The Land Area Right is a officially in register announced Right, which can't be separated from Exclusively Owned Part to dispose among the Right to use Land Area. And for a use and beneficiary right of the Land Area of a Building to own the Exclusively Owned Part should be applied article 263 of the 'Civil Law'. The Supreme Court's Precedents point out that a scope of the Right to use Land Area regardless of ratio of there share part extends to the whole land area of the building as a property of share.