관습법상의 법정지상권 = Legal Superficies in Customary Law

다국어 초록 (Multilingual Abstract)

Legal Superficies in Customary Law*

Kim Hyun chul

Department of law
Graduate School, Kyungpook National University
Daegu, Korea
(Supervised by Professor Kang, Tae Seong)

(Abstract)

As for judicial civil law principle of private autonomy was based on the sinuichik between signature in accordance with the law regulating relations in harmony, but they think there are any purpose. One-way or benefits only when opposing ever adopt a transgression as anti-social order and should not be the result or harm the interests of the community Social rule not deviated from the framework of law without violating the personal intention, as long as respectful of the Parties to the maximum of a doctor that lead in the direction consistent with the Enforce any conduct or should not be forcing can't do it any other way. We can not be legal was a full and also because the court's decision to become a creator of the missing part when filled out of law complement, not law and sign To resolve the dispute between the interpretation, should be applied to become the most sensible and reasonable outcome. Inevitably the Court of the regulations are simple application of specific issues, not only the interest of individuals in accordance with the benefit of our society, not only for countries that are matched with the To be the decision to accomplish, and this cumulative logic or law that served as a nasal sound of another grammar test case as a result that brought about the system.
As we saw in more than statutory superficies customary law is 1916, after the verdict, the Court judgment of the court so far since been recognized as the attitudes of As usual, be recognized. However, as reviewed above The application and interpretation into a groove is right to apply, in principle of land and buildings, not the same owner is legitimate, Causative acts of destruction of the different impression on the estate, by building to display the intentions of, or withdrawal or lease contract or with other land for usufruct Surface rights if there was no agreement in legal relations by granted by the effects of their economic values are sufficient in the building of public interest as a guarantee of the duration of Socioeconomic In terms of building to prevent unnecessary economic losses resulting from demolition and private benefits associated with the unfriendly to the building owner's property rights inevitably, and at the same time ensuring of land tenure Circumscribed as admitted to the stuff to the landowner to harmoniously the benefits of protons will be chosen method.
Therefore, the case of non-developde land in the newly-constructed building in the building and then constitute the right of third party's first who is not limited by such a case to make a court lacked apostolic succession law, custom. Land holder of a right of the Third Parties on the right expect losses of ailing or like a nominal trust owner's name can entry, which precludes the need to protect any case, Or condominium ownership as nominal registration not only substantive management of property relations judgment, in accordance with the specific issues such as customs law, the effectiveness of the statutory superficies To reach the conclusion by granting or not allow you to reasonable and valid legal judgments for the efforts.
Of course, a land owner's point of view, ownership of major constraints due to statutory superficies of customary law would not be so recognized. However, the land and buildings can happen in our legislation, which inevitably looked at in isolation such phenomena phenomenon and about own parties to take into account the benefits can't. If you don't recognize this and will not be taken down outside the building and this is the owner of a building entirely with disadvantages of both sides as a result of harmonisation is not a one-sided The form of a loss of property rights can be no outside. But you, do you recognize the right to lease lacked apostolic succession, Land or another type of ticket winners have chosen you as a legislative problem that's on the carefully what will select advisedly.
If the holder of the land and buildings free of any changes, bilateral consultations to elicit the consent of the catchment area of land by a business relationship it is real in it is not an easy task. A land owner will want not to be limited to the land's point of view, as much as possible, and building owners also for ownership of the building in the position of the gunwalesWill want access to the rights of a stable and long-term because it is. When these two-way conflict without a stance is incompatible with what is normal or, to each said he wanted to make a favorable results wrong, either. If the holder of the land and buildings free of any changes, bilateral consultations to elicit the consent of the catchment area of land by a business relationship it is real in it is not an easy task. A land owner will want not to be limited to the land's point of view, as much as possible, and building owners also for ownership of the building in the position of the gunwales Will want access to the rights of a stable and long-term because it is. When these two-way conflict without a stance is incompatible with what is normal or, to each said he wanted to make a favorable results wrong, either.
Due to this, however, in legal relations established and is difficult to reach an agreement is not delayed, this is the state with no time to customary law, by acknowledging the statutory superficies May be a bigger problem than some problems. Therefore, the meantime, statutory superficies customary law that had been recognized as the court's ruling by the legislation to clarify the legal relations seem to be is the best thing to do.
As we take a look at revising the Civil Code on the problem was again in 2013 to complement, including revision of the amendment proposed in 2004. I have been pointed out as a problem that had been problems, and subject to the duration of registration, the claim for recognition and creation of superficies of the institution itself, of paper stock, building and, building and the problems of surface right Appendant nature on several fronts, including the legislation. Already, the general sentiment figure of the statutory superficies customary law as a matter of course accept that and there, and now you have to suddenly change to the relationship of lease is in turmoil once again Since there is fear that it will bring seems reasonable. Of course, still unregistered or a problem from a building in non-public announcement not included in the contents of the contents of the issues related to the above still outside can not simply because the decision of the court Even though there have been many parts that be a factor in the dispute can be expected to be solved.
Therefore, setting up of superficies of the building owner of claims exclusively with the legislation concerning the registration of thought that is also necessary. Surface right for the arrangement is achieved peacefully, as have filed a cow doing should be revised only through a trial, unless this shall be determined, which is Give a burden on economic and time for all parties. Or be released from prison in the middle of a consultation period comes to existence. Also, as a court in retaining the imposition of unnecessary work.
Once the customs of the existing law, in principle, a legislator's intentions are statutory superficies fulfils the requirements of the Parties to the land use, the relation between the surface rights as the implicit agreement to the content of the That although the sole registered owner's property in points allowed is that it is okay even if they ever be. And the sole registration of the reasons to and about stuff, in consultation with at a later date and duration of the trial or a postentry. if you neglect your way in which seems likely to be having to do it. If so, can prevent damage you can blow third party caused by non-public announcement. Just land ownership restrictions on crucial characteristics of surface rights in order to prevent the registration of false accusation under the strict procedures and requirements will is required. Once the customs of the existing law, in principle, a legislator's intentions are statutory superficies fulfils the requirements of the Parties to the land use, the relation between the surface rights as the implicit agreement to the content of the That although the sole registered owner's property in points allowed is that it is okay even if they ever be. And the sole registration of the reasons to and about stuff, in consultation with at a later date and duration of the trial or a postentry. if you neglect your way in which seems likely to be having to do it. If so, can prevent damage you can blow third party caused by non-public announcement. Just land ownership restrictions on crucial characteristics of surface rights in order to prevent the registration of false accusation under the strict procedures and requirements will is required.
An unlicensed, and the attitude of the existing case law was modified for the building, Shouldn't. In the case of unauthorized buildings should look at is that any less value to protect of the law, in this case to law lacked apostolic succession in, the law is the subject to be applying sanctions Rather, recognized to have a legitimate title of land use error to guilty, I think it is not. In the building can not even registered as an unlicensed, but also from the revision of the creation of superficies. There is no claims are accepted for to the campaign. An unlicensed, and the attitude of the existing case law was modified for the building, Shouldn't. In the case of unauthorized buildings should look at is that any less value to protect of the law, in this case to law lacked apostolic succession in, the law is the subject to be applying sanctions Rather, recognized to have a legitimate title of land use error to guilty, I think it is not. In the building can not even registered as an unlicensed, but also from the revision of the creation of superficies. There is no claims are accepted for to the campaign.
Finally, the superficies of the system itself is referred to as suspension, which is my problem the land that can be in relationship to actual business transaction with the gravity of the restrictions on that landfill are almost noIs the meaning of the amendment from the situation looks bigger. Land holder of the free land lease is more in reality, rather than constrained by surface rights as a doctor occasionally will make by source of conflict in connection with superficies Issue is whether or not is cooperate with the considerations weighing the respect of the statutory superficies of customary law. Although it was common practice, one, who do business with the land and building assembly legislation treating it, separating the land and buildings, more than they don't change, social and economic Advances in technology development and building greater values of the reality of the land and inevitably requires building that does not even the appearance of you to consider building of an independent It is not necessarily make legal relations, complex idea to treat is as real estate. Therefore, under revision of the case The introduction of the superficies of regulations has been actively to enhance usability in under civil law beyond the situation, which can not be used will serve as an opportunity I thought.

목차 (Table of Contents)

• - 목차 -
• Ⅰ. 서론 ·················································································· 1
• 1. 연구의 목적 ········································································· 1
• 2. 연구의 범위와 방법 ································································ 3
• 3. 관습법상 법정지상권 ······························································ 4
• 4. 토지와 건물의 분리 ································································ 5
• Ⅱ. 지상권 일반론 ········································································ 9
• 1. 약정지상권 ············································································ 9
• 2. 법정지상권 ·········································································· 11
• (1) 제305조의 법정지상권 ······················································· 12
• (2) 제366조의 법정지상권 ······················································· 15
• Ⅲ. 관습법상 법정지상권의 연혁과 입법례 ····································· 18
• 1. 관습법상 법정지상권의 연혁 ·················································· 18
• (1) 조선시대 ·········································································· 18
• (2) 구민법 ············································································· 20
• (3) 현행민법 ·········································································· 22
• 2. 입법례 ················································································ 22
• (1) 로마법 ············································································· 22
• (2) 각국의 민법 ······································································ 24
• Ⅳ. 관습법상 법정지상권의 의의와 근거 ········································ 26
• 1. 관습법상 법정지상권의 의의 ·················································· 26
• 2. 관습법상 법정지상권의 근거 ·················································· 30
• (1) 민법 제305조, 제366조의 입법목적과 관습법상의 법정지상권 · 30
• (2) 신의칙의 원칙과 관습법상의 법정지상권 ······························· 31
• Ⅴ. 관습법상 법정지상권의 성립요건 ············································ 34
• 1. 처분당시의 토지와 건물이 동일한 소유자에게 속할 것 ·············· 34
• (1) 미등기건물에서의 법률관계 ················································· 37
• (2) 양도담보가 설정된 토지에서의 법률관계 ······························· 40
• (3) 공유인 토지와 건물에서의 법률관계 ····································· 41
• (4) 가등기 후 본등기 된 경우의 법률관계 ·································· 45
• (5) 기타의 경우 ······································································ 46
• 2. 토지 또는 건물이 적법한 원인행위로 인하여 소유자가 달라질 것· 48
• (1) 적법한 원인행위 ································································ 49
• 1) 판례가 인정한 적법한 원인행위 ·········································· 49
• 2) 판례가 인정하지 않는 원인행위 ·········································· 52
• (2) 소유자가 달라질 것 ····························································· 53
• 3. 건물철거에 대한 특약이 없을 것 ············································ 54
• (1) 건물철거특약 ···································································· 54
• (2) 명시적 적극적인 의사 ························································ 56
• (3) 입증책임 ·········································································· 57
• (4) 특약의 배제 ······································································ 57
• 4. 등기와 관련된 대항력 문제 ···················································· 58
• Ⅵ. 관습법상 법정지상권의 효과 ·················································· 61
• 1. 관습법상 법정지상권의 내용 ·················································· 61
• (1) 관습법상 법정지상권의 인정범위 ········································· 62
• (2) 존속기간 ·········································································· 63
• (3) 지료 ················································································ 70
• 2. 관습법상 법정지상권의 처분 ·················································· 73
• (1) 미등기취득자의 처분 ·························································· 75
• (2) 미등기취득자와 토지소유자의 법률관계 ································ 78
• Ⅶ. 민법개정안과 대안에 관한 검토 ·············································· 82
• 1. 민법개정안 ·········································································· 82
• (1) 2004년 민법개정안 ···························································· 82
• (2) 2013년 민법개정안 ···························································· 84
• 2. 대안의로서 임대차규정 ·························································· 89
• Ⅷ. 결론 ··················································································· 92
• <참고문헌> ··············································································· 97
• ············································································· 101