경계를 침범한 건축

Abstract

Construction over boundary of neighboring land is referred to the case in which buildings or protruding part of buildings infringes on neighboring land. Current civil code does not have special provisions to prevent the devastating demolition from the perspective of public interest with the regard to this construction over one’s boundary. Thus, with the respect to construction over ones’ boundary, those who own neighboring land can claim the interference removal from building over owners’boundary (Civil code article 214) and claim return of deforcement of land (Civil code article 213). However, with the respect to construction over one’s boundary, it is not reasonable to always claim the demolition of part of building over one’s boundary from the perspective of public economy and there is a risk that a neighboring land owner may abuse it to gain unfair advantage through threat of demolition on part of building over his/her boundary. In addition, there are many cases in which construction over one’s boundary may occur due to actual measurement errors in Korea. Under german civil law article 912, if a building infringes on boundary without intention or gross negligence when a land owner constructs a building, it will be tolerated unless a neighboring land owner raises objections immediately. At the time, neighboring land owner’s request for compensation or purchase claim for corresponding part of land is recognized. In addition, the swiss civil law article 674stipulates construction on one’s boundary and it recognizes it as statutory servitude. Accordingly, in amendments to civil code by Ministry of Justice in 2004, civil code article 242-2(construction over one’s boundary) was newly established and the regulation to limit the demolition of construction on one’s boundary was made with reference to german civil law article 912. In addition, the second subcommittee of civil code revision committee in Ministry of Justice in 2011 recognized a neighboring land owner’s duty of patience with the regard to construction over one’s boundary like german civil law article 912, and therefore the legislation to directly limit ownership was established.