담보지상권

Abstract

The superficies for security is the common practices of transaction which financial institutions such as Korean banks have used a secured loan for bare ground from 1970'. At that time superficies for security was practiced widely by the business index of domestic bank established by standard of protocol of financial supervisory authorities. According to Korean Civil Law § 356, a mortgagee is entitled to obtain satisfaction of his claim in preference to other creditors out of the immovable which has been furnished by the debtor or by a third person as security without transferring its possession. So that a mortgagor uses mortgaged land because mortgage is the right of change value. According to Korean Civil Law § 279, a superficiary is entitled to use the land of another person for the purpose of owning buildings, other structures or trees thereon. But a mortgagor does not use mortgaged land established against superficies for security. However if it is permitted by a mortgagee, a mortgagor can use and profit mortgaged land. There are still two theories about the validity of superficies for security. one is negative theory because superficies for security is violated by numerus clausus der sachenrechte, and then is the fictitious declaration of intention in collusion. The other is positive theory because superficies for security is not fictitious declaration of intention in collusion and agrees with true intention and declaration. In my opinion, superficies for security is not violated by numerus clausus der sachenrechte, and then is not fictitious declaration of intention in collusion and agrees with true intention and declaration. So superficies for security is customary real right recognized officially by the Korean Supreme Court.