不動産의 一元化에 관한 硏究

다국어 초록 (Multilingual Abstract)

The purpose of this research was to achieve the unification of real estate by modifying existing attitudes of the Civil Law Act which treats lands and buildings separately, and which regards each as the independent property which can be owned separately.
Therefore, general problems from the current civil laws, which regard lands and buildings as separate objects were surveyed to achieve the unification of real estate. They are as follows.
Firstly, in civil law, the real estate is the land, and the buildings on it. Though lands and buildings on them have been treated as separate real estate, there are also some interpretational problems.
Secondly, the problems in treating land and buildings on it separately are that, in the relationship between the buildings and the validity of land ownership, the first is the problem of real estate correspondence, the second is partial invalidity, the third is legal surface rights, and the fourth is appraisal rights for properties on the surface. In the relationship of land and separate building ownership, a problem is about rights for using lands in the case of separate ownership(구분소유권).
Thirdly, in the separate ownership of group buildings(집합건물), lands and buildings are unified though the rights of using building sites are the rights of using land. However, buildings are not permanent different from lands, there is an issue of unifying them focusing on the land which is permanent.
Focusing on the interpretations of the unification of real estate, some problems in the current civil law were composed as follow.
In chapter 1, focusing on general theories about fixtures on land, the purpose, scope and methods of this research were suggested by describing problems in composing the land and the buildings on it separately in the current civil law, and by describing the purpose of this research to achieve the unification of real estate.
In chapter 2, regarding the history of law about real estate and the foreign cases, the history was revealed by analyzing the Roman Law and the German Law. In addition, through the foreign legislation such as that of France, Germany, England, the USA, Japan and China, the methods of composing the unification of land and buildings, and how the unification of land and buildings is publicly announced through the indirect official notices were analyzed and examined.
In chapter 3, regarding the history and legislation of Korean real estate, the traditional legislation of real estate from the ancient three countries to the Chosun Dynasty were surveyed, and then the modern ownership system of land in the each age such as Korean Lost Empire, Japanese Residency-General ruling age, Japanese Imperialism ruling age and the US Army Military Government in Korea. Next, the legislating intents of lawmakers were revealed by analyzing the legislative data about discussing the unification of real estate in Korea and those data related to legislating the Japan Civil Law.
In chapter 4, as the unification theory of real estate in the current legislation of real estate, the legal aspects of land and buildings were surveyed from social and economic viewpoints. In the relationship between the buildings and the effects of land ownership, buildings as fixtures on land, the problem of real estate correspondence, the problem of partial invalidity, the problem of legal surface rights and the appraisal rights of fixtures were analyzed and examined in interpretational aspects. Furthermore, the theory of unification was discussed with the problem of the rights of using land in the relationship between the land and the separate building ownership.
In chapter 5, the problems related to buildings, which are fixtures on land were discussed in conclusion. Because the land and buildings are closely related and are traded concurrently in general commercial trades, it is necessary to regard the buildings as the object of land ownership, to interpret the unifications of real estate in that buildings correspond to the land, and, about the problem of partial invalidity, to interpret elastically according to the principle of faithfulness considering the trade customs that there may be the legal acts even though there are no invalid parts. From the viewpoint of the unification of land and buildings through securing the rights to use lands by building owners, it was pointed out that a new viewpoint is necessary about the legal surface rights in common law, which have been regarded as unreasonably infringing upon the interests of land owners.
Furthermore, if the current problems about real estate in Civil Law are maintained without the basic modifications, there could be a problem of official notification if the building ownership can be transferred to lessees without the registration due to the exercise of appraisal rights for surface fixtures, and there could be another problem of a third party with good will, who traded by relying on the registration, could be protected. If the meaning of formed rights (형성권) in the law of property is considered, it can be asked whether it is reasonable to change the ownership only with the unidirectional opinions or expressions. If the ownership can be changed only after the opinions of the other party are presented, the meaning of formed rights decrease considerably.
In addition, if the ownership of a building can be transferred by the exercise of appraisal rights without the registration, there can be a problem of a lessor becoming responsible for unexpected burdens. Therefore, those problems in current Civil Law can be eliminated by unifying the land and buildings on them.

목차 (Table of Contents)

• 목차
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• I. 緖說 = 1
• II. 問題의 提起 = 5
• 第2節 硏究의 範圍와 方法 = 11
• I. 硏究의 範圍 = 11
• II. 硏究의 方法 = 12
• 第2章 不動産法制의 沿革과 外國法制 = 13
• 第1節 序說 = 13
• 第2節 不動産法制의 沿革 : 로마法과 게르만法 = 13
• I. 로마法 = 13
• II. 게르만法 = 14
• 第3節 不動産에 관한 外國法制 = 15
• I. 프랑스의 不動産法制 = 15
• 1. 土地와 建物의 一體性 = 15
• 2. 公示制度 = 16
• II. 獨逸의 不動産法制 = 20
• 1. 土地와 建物의 一體性 = 20
• 2. 公示制度 = 23
• III. 英國의 不動産法制 = 30
• 1. 土地와 建物의 一體性 = 30
• 2. 公示制度 = 31
• IV. 美國의 不動産法制 = 32
• 1. 土地와 建物의 一體性 = 32
• 2. 公示制度 = 35
• V. 日本의 不動産法制 = 54
• 1. 土地와 建物의 一體性 = 54
• 2. 公示制度 = 59
• IV. 中華人民共和國의 不動産法制 = 60
• 1. 土地와 建物의 一體性 = 60
• 2. 公示制度 = 62
• 第4節 結語 = 62
• 第3章 土地와 建物에 관한 우리나라 不動産法制의 沿革 및 立法 = 64
• 第1節 序說 = 64
• 第2節 土地와 建物에 관한 우리나라 不動産法制의 沿革 = 64
• I. 槪觀 = 64
• II. 傳統社會의 不動産法制 : 不動産法制의 前史 = 65
• 1. 三國時代 = 65
• 2. 統一新羅時代(統一以後) = 69
• 3. 高麗時代 = 70
• 4. 朝鮮時代 = 77
• III. 近代法 受容期의 不動産法制와 不動産一元化의 問題 = 80
• 1. 大韓帝國期 = 80
• 2. 統監府時代 = 97
• 3. 日帝支配期 = 100
• 4. 美軍政期 = 103
• IV. 結語 = 105
• 第3節 우리 民法의 立法過程과 不動産의 一元化 = 106
• I. 序說 = 106
• II. 우리 民法의 立法過程과 不動産의 一元化 = 107
• 1. 不動産에 관한 民法草案 = 107
• 2. 民法案의 立法過程과 立法意思 = 109
• III. 結語 = 118
• 第4章 現行 不動産法制에 있어서 不動産의 一元化論 = 120
• 第1節 序說 = 120
• 第2節 土地와 建物의 一體化論 = 121
• I. 法的側面에서의 檢討 = 121
• 1. 土地와 建物의 一體的 構成의 長點 = 121
• 2. 土地와 建物의 一體的 構成의 問題點 = 122
• II. 社會的·經濟的 觀點에서의 檢討 = 123
• 1. 土地와 建物의 一體的 構成의 長點 = 123
• 2. 土地와 建物의 一體的 構成의 問題點 = 123
• 第3節 建物과 土地所有權의 效力과의 關係 = 124
• I. 槪觀 = 124
• II. 土地의 定着物로서의 建物 = 124
• III. 不動産附合의 問題 = 126
• 1. 土地와 建物과의 附合 여부 = 126
• 2. 附合에서의 問題點 = 130
• IV. 一部無效의 問題 = 140
• 1. 問題의 提起 = 140
• 2. 土地와 建物을 한 개의 契約에 의하여 賣買한 경우 = 141
• V. 法定地上權의 問題 = 147
• 1. 問題의 提起 = 147
• 2. 法定地上權의 土地所有者에게 미치는 法律效果의 分析과 檢討 = 148
• 3. 法定地上權의 讓渡와 登記請求權과의 關係의 分析과 檢討 = 154
• 4. 法定地上權에 관한 具體的 問題 = 174
• 5. 法定地上權制度의 再檢討 = 186
• VI. 地上物 買受請求權의 問題 = 188
• 1. 問題의 提起 = 188
• 2. 地上權者의 地上物 買受請求權 = 190
• 3. 土地賃借人의 附屬物 買受請求權 = 191
• 4. 判例의 態度 = 203
• 5. 地上物 買受請求權에 의한 土地와 建物의 一體性 確保 = 208
• 第4節 垈地와 建物區分所有權과의 關係 = 210
• I. 區分所有權에 있어서의 垈地使用權 = 210
• 1. 土地와 建物의 一體性에 관한 立法意思 = 210
• 2. 垈地使用權의 理論的 構成 = 213
• II. 一體性 理論의 檢討 = 219
• 1. 一體性 原理의 趣旨 = 219
• 2. 一體性 原理의 具體化 = 221
• 3. 結語 : 垈地權에 의한 建物所有權과 垈地使用權의 一體化 = 225
• 第5節 結語 = 226
• 第5章 結論 = 228
• 참고문헌 = 241
• Abstract = 250