지상권의 개정방안

A Study on the Revision of Superficies

The Korean Civil Code provides two kinds of superficies, one is contractual and the other is statutory. In addition, the case law has allowed another kind of superficies by customary law. But the contractual superficies is not in good use. Whether through case law or by statute, the application and the use of the superficies have many problems, especially in the execution proceedings, and it has encountered criticism. In 2011 the Third Subcommittee of the Civil Code Amendment Committee reviewed the superficies generally and proposed the draft. First, in the contractual superficies the duration compelled by law should be shortened. Art.280 and Art.281 provide the minium period of the superficies, which is very long in the Civil Code and imposes a heavy burden on the landowner. Art.284 stipulates this period at the renewal of the contract again. But it can t be justified, and should be rescinded. Second, the superficies by customary law should be codified. When a person conveys his land or the building on it without any agreement on the use of the land or the removal of the building, it is enough that the owner of the building be given only a right to bring an action against the landowner for creating the superficies, not the superficies itself by law. Therefore the draft Art.289-3 provide the right to bring an action for creating the superficies. However when the land or the building is transferred in the execution proceedings or such as in which an agreement on the use of the land could not be expected, the owner of the building be given the superficies. So the draft Art.289-4 proposes the general provision on the statutory superficies including Art.366. While this superficies aims to maintain the building, it has the effect corresponding to the institutional intent.