공유토지 위의 단독소유건물·공유건물과 법정지상권

Abstract

This article is a critical review on the ruling of the Supreme Court of Korea (2014. 9. 4. 2011da73038, 73045). The main legal issue of the case is whether an auction to execute a mortgage right takes effects on the legal superfices for buildings under the Korean property law. After evaluating the main factors of the case regarding the auction, legal superfices, and the general rule of co-ownership of lands and/or buildings in Korea, the author suggests practical illustrations, divides them into some types and analyses them according to their characteristics, and critiques the ruling of the Supreme Court. As regard to the ‘building on a co-owned land’ the author states his difference in opinion regarding the reasoning of the Supreme Court especially on the trigger of the legal superfices, although he agrees with the decision that the legal superfices might not be recognised. As regard to the ‘co-owned building on a co-owned land’ the author criticizes the decision of the Supreme Court stating that the legal superfices may not be recognized due to ‘trust and good faith’ principle(§2(1), Korean Civil Code). This article also covers other recent related issues of the superfices in Korea.