Korean civil law adopts a dualistic property system that treats land and buildings as separate immovables. As a result, when ownership is split through foreclosure auctions or private transfers, the legal basis for continued building use of the underl...
Korean civil law adopts a dualistic property system that treats land and buildings as separate immovables. As a result, when ownership is split through foreclosure auctions or private transfers, the legal basis for continued building use of the underlying land becomes a recurring issue. While Article 366 of the Korean Civil Act provides for a statutory superficies in cases of mortgage foreclosure, Korean courts have broadly recognized a customary statutory superficies since 1916. In today’s transaction environment, however, a long-term superficies that arises without registration can impose substantial information costs and transactional risks on third-party purchasers and may compel excessive sacrifice by landowners. Moreover, because the real estate registration system is grounded in the principle of joint application, registration of statutory superficies rarely occurs in practice, weakening publicity and contributing to repeated disputes. This study reexamines the normative scope of customary statutory superficies by distinguishing between “voluntary separation” and “involuntary separation” of land and building ownership, and proposes legislative alternatives that integrate justifiable portions of customary doctrine into an amended Article 366 framework. It further presents institutional measures to strengthen publicity, including allowing unilateral applications for registration, introducing a non-contentious “statutory superficies determination” procedure, and adopting a court-ordered registration mechanism analogous to the leasehold registration order system. Using case law and literature review alongside expert focus group interviews (FGI), the study evaluates the practical feasibility of these reforms.