건물의 소유자와 점유자가 다른 경우에 있어서 대지의 점유관계

The common social idea is that a building cannot exist apart from the plot it stands on, but in Korea, buildings are separate real estate from the land they occupy. The precedents have long been that land upon which a building stands is occupied by the building owner, and even if the building owner is not actually occupying the building or the land, the land is his to occupy because of his building ownership. However, regarding a situation in which a person’s building exists on another person’s land, and a third party occupies that building without title, it needs to be determined whether the building occupant can be seen as occupying the plot separately from the building owner. Specifically this problem involves ⅰ) the status of landowner’s claim to repossess as a holder of real rights against the building occupant, ⅱ) the scope of building occupant’s restitution against unfair profit and the opposite party, and ⅲ) the status of building occupant’s acquisitive prescription of land. Scholarship is divided between ⅰ) the view that a person who occupies and uses a building is naturally occupying and using the accompanying land, and ⅱ) the view that, although the person is doubtlessly using the land, it is merely a reflex of the fact that the person is occupying and using the building located on the land, and the person is not occupying the land separately and independently from the building owner. On this point, the precedents are inconsistent. When a building owner has the right to use the land, it must be said that the building occupant is not occupying the land separately from the building owner. Accordingly, the land owner cannot request directly for the building occupant to vacate the building. The building occupant must restitute a large portion of rental fee as unfair profit to the building owner and not to the land owner, and at such time, the rental fee is not calculated separately for the building and the land. Instead, a large portion of the building’s rental fee can be calculated with consideration to the land usage relationship. If a building owner does not have the right to use the land, the building occupant and owner must be seen as occupying the land separately. Accordingly, the land owner can directly request the building occupant to vacate the building. The building owner and occupant both must be seen as illegally occupying the land in their relationship to the land owner, and thus the land owner can claim restitution for a large portion of the rental fee for the land to either the building owner or the occupant. The building owner can have acquisitive prescription of land ownership under a certain set of conditions. According to precedents, a person who is not the building title holder cannot be seen as occupying the land even if he actually occupies the building, and the building occupant cannot have acquisitive possession of the land. However, regardless of a building owner’s right to use the land, the building occupant’s occupation and acquisitive possession of the land must also be recognized.