地上權의 發展過程 및 우리民法上 問題点 = The Evolution of Superficies

다국어 초록 (Multilingual Abstract)

The Civil Code of Korea fenerally provides two ways of legal schemes using other persons land : superficies and lease. Article 279 prescribes that "A superficiary is entitled to use the land of another person for the purpose of owning building structures or trees thereon." On the other hand, Article 618 says that "A lease becomes effective when one party has promised to allow the other party to use the leased premises and reap the profits therefrom in exchange for the latters promise to pay the rent therefore". From the standpoint of the user, the former system is stronger than the latter is that superficies is a real right as contrasted with lease which is a personal. Land owner naturally prefers a lease to superfices, and normally, his economic status supersedes that of a user, making lease a more common practice in reality.
One who leases a land from another person for the purpose of erecting a building or other uses has very unstable legal status. Thus, he would willingly buy the land and be the owner if he could. Land has been the most common and effective means of capital investment, and it is the last property to dispose of to balance his economy. For decades, land prices have skyrocketed, piloting the prices of other goods. They are the prime cause for many social and economic problems. It is highly desirable and inevitable, to devise legal schemes to discourage land speculation by way of strengthening the legal status of a land user.
Superficies is one legal system which serves such purposes. The only problem is that it is rarely used in practice, therefore it needs to be made to work better, either by amending the provisions or by reading in new values thereto.
The system of superficies has its origin in the Roman law and the European civil laws. The Romans had an axiom in their ius civil meaning, "The building on a land becomes one thing with the land". The regarded superficies as the right to use the land just like the owner for an indefinite period or for a long term(for example, for 99 years). Roman superficies were real right.
Superficies in the contemporary German law(Erbbaurecht) has two streams of origins : one from the Roman superficies, the other from the City Land Lease(die Stadtische Bodenleihe) of the 12th century. In those days, citizens of German cities were granted with a lease right of land from their feudal lords for the purpose of developing the cities by building houses and markets. Their rights were real rights. This practice continued through the 18th century. When the Civil Code of Germany came into effect on January 1, 1900, superficies was provided in its Article 1012. A special statute on the superficies(Verordnung uber das Erbbaurecht), enacted on January 15, 1919, elaborated detailed principles thereon. Governmental policies, both on Bund and Land levels, have continuously encourages active use of superficies.
The Civil Code of Switzerland prescribes superficies in the form of a servitude(Dienstbarkeit). Their origin being the Free Urban Tenure of the Middle Ages, the concerned provisions of the Civil Code of France bear the possibility of inducing out superficies.
The Civil Code of Japan, modeled after European ones, originally regarded superficies as a special ownership of the land. However, it was later amended so as to make it the right to use land for the sole purpose of owning buildings etc. thereon. The amendment was an effort to reflect indigenous local custom.
Korea has a system of superficies similar to the Japanese one. The concept of superficies deserves heavy emphasis on the part of owning the building. A few supplementary provisions are set primarily for the protection of the superficiary. However, they have been proved to be impractical, if not worthless. New devices must be employed to make the superficies a working law in Korea.

목차 (Table of Contents)

• Ⅰ. 序說
• Ⅱ. 各國에서의 地方權의 發展 過程
• 1) 로마法
• 2) 獨逸法
• 3) 프랑스法
• 4) 일본法
• 5) 영국法
• Ⅲ. 우리 民法上 問題點
• Abstract