地上權과 傳世權의 消滅과 登記와의 관계

In regard to the notification of right to lease on a deposit basis and the request of extinguishment of superficies and right to lease on a deposit basis, if a person with creation of superficies(or a person with creation of lease on a deposit basis) request or notify the extinguishment, there are two opinions that whether only to the need a manifestation of will of request or notify the extinguishment of superficies(or the right of lease on a deposit basis) or the need of the registration for cancellation. The opinion has been thoroughly discussed on the same side on superficies and right to lease on a deposit basis. Though the Civil Code commonly provide the request of extinguishment of superficies and right to lease on a deposit basis, I am on the opposite side of the opinion that it is discussed at the same standpoint of superficies and right to lease on a deposit basis. In case of the request of extinguishment of superficies, remaining the registration of superficies is invalid as the discrepancy in true relation because the competence of the use and benefit is extinguished from the exercise of the right of unilateral act. In the request or notify extinguishment, though one is the usufructuary competence of the legal natures of right to lease on a deposit basis is extinguished, the competence of real right granted by way of security is left. And also, the security competence is lapsed by the refund of security money for lease on a deposit basis. Therefore the right to lease on a deposit basis must be extinguished by appendant nature of the real right granted by way of security without the registration for cancellation. However the refund of security money for lease on a deposit basis than the registration for cancellation of the right to lease on a deposit basis is not the previous performance of an obligation, but concurrent performance of an obligation according to the Civil Code art. 317. Though such that case has drawn criticism because of the inadequacy to protect the bona-fide third party, It is necessitated by lawmaker's decision has more protection of the true rightful person than the safety of real estate transaction when the principle of public trust is not adopted in the Civil Code.