慣習法上 法定地上權에 관한 硏究

Although Korean and Japanese laws regard land and buildings as different real estate, the notion of legal superficies under customary laws is not recognized in Japan. Like in Japan, if a piece of land and a building thereon that were owned by a person get to belong to other owners, respectively, in Korea, there occurs an issue whether the owner of the building has to remove the building, or not, unless he/she has a land usufruct such as superficies or Jeonse right (or leasing right), which is the basis on which the building may exist. That a building must be removed because of the absence of a land usufruct may lead to contradiction to the legal effects the parties desire, or may also lead to a big loss in terms of socio-economy. In order to resolve such problems, Korean Civil Law recognizes the legal superficies for the benefits of building owners, and the precedent has continuously recognized legal superficies under customary laws since the judgments by the Joseon High Court. One of the important bases that the legal superficies under customary laws has been recognized was to consider the socio-economic values of buildings globally, resulting in restrictions on the ownership of land, not for the protection on the individual benefits of building owners. As such, the legal superficies under customary laws was established as a theory of precedent in the era of the Old Civil Law, and it is recognized as a customary real right even under the present Civil Law. However, questions about its theoretical basis, uncertainty of formation requirements, the risk of damage to third parties in good faith due to incomplete public notice, and complications in legal relationship bring doubts to its validity. Considering the present reality that the buildings that cause disputes in relation to legal superficies under customary laws impair the aesthetics and views in cities and cause larger costs and temporal loss because of urban redevelopment and improvement projects for more comfortable environments, it is required to clarify the justification of recognizing the legal superficies under customary laws and to reconstruct it into restrictive interpretation in the course of application. This paper will examine the recent dispute cases in relation to the legal superficies under customary laws, review the issue whether or not the legal superficies under customary laws, which was established by precedents should be continuously recognized, and present ways to help solve the issue. In conclusion, this paper presents a scenario that does not recognize the establishment of legal superficies under customary laws in accordance with the principle of private autonomy in the case of sale, donation, and division of contractual common property. Moreover, this paper follows the conclusion that any fraudulent act that abuses legal superficies under the pretense of the form of sale or donation should be excluded according to the legal maxim "the law will not cooperate with illegality".