共同抵當의 目的인 建物의 再建築과 法定地上權

On the Legal Effects of Unauthorised Reconstruction of Mortgaged Buildings: a Review of the Decision of the Supreme Court of Korea

This article is a review of a decision of the Supreme Court of Korea - on the legal effects of unauthorised reconstruction of mortgaged buildings. The Supreme Court of Korea abandoned its long sustained precedents and held that the owner of the reconstructed building was denied of the statutory surface right(Popjong-Jeesangkwon in Korean), which means the new owner of the land who purchased it through auction might claim the removal of the building. The topic was so critical that the Supreme Judges opinions were splitted. There was minor opinions that the precedents should be sustained on the ground that we need to balance the value of the two important aspect of the property - the financial value of the property vs. the use of the property. The author, mentioning the socio-economical background of the decision, agrees with the Supreme Court of Korea on that the past ruling needed to be changed anyway and the new ruling can be helpful and effective for the globalization and modernization of Korean mortgage(Jeodang-Kwon in Korean) law. But the author is of opinion that bulk auction(Ilgwal- Kyungmei in Korean) might have been the better option for the Supreme Court of Korea, criticising the decision by comparing the mortgage, statutory surface right and auction law between Korea and Japan. If we use bulk auction right the relationship between the parties might be much more simple and clear because the building and the land definitely belongs to the same person after the auction. There might be an opinion that bulk the owner of the new building may not subject to the bulk auction because he or she is not a debtor. But it is beneficial to him or her as well because to be auctioned is better than to be removed. It is to be noted that the one of the characteristics of the Korean property law is that the land and the building on it may belong to different persons. It needs to be emphasized that this strange situation is “possible according to the Korean Civil Code but at the same time it is still very “unnatural and exceptional even in Korea. It might to be advised to avoid it. The use of the bulk auction right could be a better solution to avoid it.