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KCI우수등재 학술저널

건물양도의 사해행위취소와 법정지상권

대법원 2014.12.24. 선고 2012다73158 판결

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This script reviewed in respect of statutory superficies so far,ⅰ) determination reference point of whether of ownership of the same person in the land and the building regarding (provisional) attachment registration⋅(collateral) security right put up⋅determination of the point of time to register real right conduct which is the disposal act or has the similar effect to disposal act, ⅱ) reason to be absent with invalidity or cancellation in the causative act that differentiates the ownership of the land and the ground building that were owned by the same person as the establishment requirement of statutory superficies, ⅲ) review of the object judgment that is viewed not to be invalid since the statutory superficies that existed in the building registered person is not influenced by the effect of speculative behavior cancellation along with execution of registered person s right to cancellation, ⅳ) suggestion of the ground not to transfer statutory superficies accompanied by the ownership of building without registration even when the building ownership acquired with statutory superficies is sold by auction, ⅴ) and the fact that the successful bidder who acquired the ownership of the building by auction of the building already established with the statutory superficies can acquire this object only when the statutory superficies is registered. Object judgment adopted the legal principle that the beneficiary and subsequent purchaser do not loss the ownership and statutory superficies, and the successful bidder who acquired building ownership from the beneficiary also acquires the statutory superficies accompanied by the building ownership, once the statutory superficies for building ownership is established, even when building transfer is cancelled due to deceptive act. However, this is an explanation that excessively restrictedly considered the effect of deceptive act cancellation without considering the function of registration. Also, when acknowledging building ownership of beneficiary on the 3rd party, it is impossible to explain the reason of compulsory execution of the target building for deceptive act by the other creditor of debtor besides the creditor based on deceptive act suit. Furthermore, there’s no plan to accomplish by insisting the ownership of beneficiary on the 3rd party, since the ownership of beneficiary on the building was cancelled due to cancellation of deceptive act. However, the point that considers the effect of creditor cancellation suit relative is a mere effect of the aspect of legal procedure law. To solve such problem basically without damaging public announcement function of substantial law and registration, it is necessary to constitute that property right is directly recovered at the creditor due to cancellation of ownership registration of the beneficiary or subsequent purchaser. To support this, it is necessary to review the plan regarding “Creditor cancellation suit should be raised at the creditor and the beneficiary.” The proviso of article no. 187 does not deny public announcement principle, the basic value of registration system as the compulsory provision. Even when the building only is transferred after establishment of statutory superficies for the building, it should be construed that the statutory superficies could not be transferred under unregistered state based on the current civil law which adopts formalism. Also, statutory superficies is a right based on the obligator, differently from the ownership that cannot have the other party. Lastly, judical politic effort is required to limit the effect of superficies based on common low as much as possible and protect the right of land owner. For this, it is necessary to prepare an institutional strategy to regulate the profit be

[사실관계 및 소송의 경과]

Ⅰ. 사실관계

Ⅱ. 소송의 경과

[연 구]

Ⅰ. 문제제기와 쟁점의 정리

Ⅱ. 토지와 그 지상건물 소유자동일성 판단의 기준시점

Ⅲ. 건물양도의 사해행위취소와 법정지상권

Ⅳ. 건물소유권의 양도와 법정지상권

Ⅴ. 맺음말

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