관습법상 법정지상권에 관한 연구 = (A)study on the surface rights of the cummon law

다국어 초록 (Multilingual Abstract)

The surface rights of the common law has been recognized by precedents. The surface rights of the common law are settled to supplement the weakness of Korea‘s Civil law that recognizes properties and buildings as independent pieces of real estate. This policy is applied when a piece of land and a building built on it that was owned by the same person comes to be owned separately by two different persons. In this case if the owner of the building cannot have the rights to use the land, his or her rights to use the land are protected by the Common Law.
The surface rights can prevent the complex problems which might be caused by the citizens' incomplete awareness on the separate ownership of land and buildings, the two independent pieces of real estates. Also it can legally allow the owners of the buildings to use the land and by doing so can protect their buildings from being demolished. Therefor it can allow the owners of the buildings to realize social and economic interests.
But many people raise questions about the legality of the surface rights of the Common Law. Concerns of the legality of the surface rights of Common Law are as follows. Firstly the land owners are forced to sacrifice their rights on their lands although they are not intented. Secondly wide recognition of legal surface rights of the Common Law might disgrace the general contracted surface rights. Thirdly it may cause problems of safe business due to the lack of publicity. The legal surface rights of the Common Law are acquired material rights by law that can be acquired without any registration and the owner of the building with such rights may insist their legal surface rights to all land owners as applicable. Any third person who purchases a piece of land based on a registration can surfer a loss as she or he cannot anticipate the application of the legal surface rights.
This study suggests relevant solutions on the questions raised above. Firstly the scope of the surface rights of the Common Law need to be reconsidered. It is inevitable to recognize the surface rights but we need to choose deliberately between what can be recognized and what cannot. And we should narrow the scope of the recognition. Secondly when the owner of the land demands the demolition of the building on her or his land, we should accept that demand only when the damage of the demolition of the building is acceptable socially and economically. Thirdly although we recognize a piece of land and building as separate real estates, we need to make it a rule to transfer them together. When transferred together the surface rights of the Common Law will become unnecessary. We can also make it a rule for the land owners establish their surface rights.

목차 (Table of Contents)

• Ⅰ. 서론 1
• 1. 연구의 목적 1
• 2. 연구의 범위 및 방법 3
• 3. 기존논의 검토 4
• 1) 해석론적 관점 4
• 2) 입법론적 관점 5
• 3) 기타의 견해 6
• Ⅱ. 지상권 및 관습법상 법정지상권의 개념 8
• 1. 지상권 8
• 1) 지상권의 개념 8
• 2) 지상권의 취득 11
• 3) 지상권의 존속기간 12
• 4) 지상권의 효력 13
• 5) 지상권의 소멸 14
• 6) 특수지상권 16
• 2. 관습법상 법정지상권 23
• 1) 관습법상 법정지상권의 개념 23
• 2) 인정하는 이유 25
• Ⅲ. 관습법상 법정지상권의 성립요건 27
• 1. 토지와 건물이 동일인의 소유에 속할 것 27
• 1) 동일소유자의 등기 27
• 2) 동일소유의 시기 28
• 3) 명의신탁의 경우 29
• 4) 양도담보의 경우 30
• 5) 미등기건물과 무허가 건물의 경우 30
• 6) 토지 또는 건물이 공유인 경우 31
• 2. 매매 등의 원인에 의하여 토지와 건물의 소유자가 달라질 것 32
• 3. 당사자간에 건물을 철거한다는 특약이 없을 것 34
• 4. 등기를 요하지 않을 것 36
• Ⅳ. 관습법상 법정지상권의 내용 및 효력 38
• 1. 관습법상 법정지상권의 범위, 존속기간. 성립시기. 지료 38
• 1) 토지사용권의 범위 38
• 2) 존속기간 39
• 3) 성립시기 40
• 4) 지료 41
• 2. 관습법상 법정지상권의 설정등기. 대항력. 양도 42
• 1) 설정등기 42
• 2) 대항력 44
• 2) 양도 45
• Ⅴ. 관습법상 법정지상권의 문제점과 해결방안 47
• 1. 문제점 47
• 2. 해결방안 49
• Ⅵ. 결론 51
• 참고문헌 53
• ABSTRACT 56