慣習上 法定地上權

Abstract

Legal Superficies on Customary LawSeung-Kil, LeeThe legal superficies on the customary law is the natural right approved to the owner of a building, which occurs in the case without a promise of removing the building between the owner of a land and the owner of the land. The problem comes from the situation: one of the properties between the land and the building, which was originally included in the same owner, is sold or any other reasons, so the ownership between them is separated. The supreme court has approved the right of legal superficies on customary law since the judical precedents of the Chosun(Korea) high court. There a critical trend on the issue of approving the legal superficies under the customary law. Its system has a fault to do harm for the third person because of its uncertainty and imperfect publicity though the previous judical precedents have tried to do. Furthermore it has a negative concept under the theoretical basis which has been admitted. This kind of legal superficies on customary law should be revised, and the approved range should not be enlarged under the current law system. It would be better to distinguish whether there is a chance to rationalize the use of the land or not, only for the right of the building owner, when two ownerships are separated.In legal theory, land and building are independant and separated real estates each other. However it is necessary that the transation of each poperty should be limited: they should be tansferred as one property.