토지소유권과 건물소유권의 이원적 체계에 관한 재검토

Abstract

The current civil law divides land and buildings into properties separate from each other. Thus, land and buildings do not share a legal fate. To own a building on another's land requires the existence of a right to occupy the land. In other words, the regulation on legal ground rights under the Civil Act and the statutory charter system under the Conventional Law, which is recognized as a precedent in the case of land and buildings being attributed to different owners, are legal matters arising from such legal composition, as well as the recognition of the right to purchase a building if the ground or lease rights for the purpose of owning the building are extinguished. The problem is that our civil law views land and buildings as separate properties, but it has not clarified why or why. Our civil law stipulates in Article 99 paragraph 1 that “the land and its settlements are real estate," so that real estate as objects of rights, especially land and buildings, can be seen as representative real estate. Our Civil Code is a collection of the German and French Civil Laws, but the legal composition between land and buildings does not follow the legal framework that those countries are taking, but it stipulates a different composition. In other words, most countries in Europe differ from our civil law in that they view buildings as a component of land in principle on the basis of the Roman law's principle of “superficies solo cedit", Our civil law, which views land and buildings as separate real estate, is similar to Japanese civil law and forms a unique legal system that differs from those of other countries. The purpose of this paper is to propose legislation to consider land and buildings as separate real estate under current civil law and, if not appropriate, a legal framework to promote the unity of land and buildings while harmonizing public and private interests.