무허가 미등기 건물 등에 대한 법정지상권의 문제점

Problems of Legal Superficies for Unlicensed and Unregistered Buildings

In this thesis, the researcher described the problems of the legal superficies that occur according to the identification in case of unauthorized unregistered buildings, buildings under construction, buildings under construction after demolishing the existing buildings, which occur frequently in auction. In addition, in the case of destroying existing buildings and constructing new buildings, the researcher introduced a recent Supreme Court en banc Decision that denied the legal superficies in view of the infringement of the interests of the joint lien away from identification and made a critical consideration. Article 366 of the current Civil Code provides that the owner of a building has a legal right to use the land within a certain range, in case that the land and buildings belong to the same person, in case that a joint mortgage is settled on the land or buildings, and either or both of them are fixed with auction, and in case that the owners of the land or buildings become different due to the auction. In other words, in case of the unauthorized or unregistered undoubtedly, in case that the existing building is demolished to construct another on the lot, and in case that a building under construction in the process of fixing mortgage, though incomplete, but fulfilling a fixed requirement, the building shall be acknowledged as the target building of legal superficies. It is the purport of this paper that the excessive extension of the scope of the building leaves room for future disputes. Therefore, it is necessary to revise the legislation to more clarify the form of the building, and it is urgent to present more concretely the buildings that fall within the scope of the legal superficies through various forms of judgment. In this paper, the researcher pointed out the problems of the legal superficies that have significance to the existence value of buildings through the present paper in terms of improving, and at the same time, presented a criticism by introducing the notable rulings of the Supreme Court recently.