민법 제365조의 일괄경매의 요건에 관한 해석과 입법론에 관한 연구

The Korean Civil Code Art. 365 provides that where a mortgagor constructs on mortgaged land after the creation of a mortgage, the mortgagee may auction the building together with the land. According to Korean Supreme Court precedent, Art. 365 protects the building while giving the mortgagee a remedy from the difficulty of auction of land caused by the existence of a building; for the mortgagee to auction the building, (1) the building should be constructed after the mortgage was attached to the land and (2) a mortgagor should own the building. A mortgagee cannot auction a building which others own. Scholars and practitioners criticize the precedent as too rigid. The main issues raised focus on the relationship between statutory superficies,Art. 366, and auction of buildings on mortgaged lands, Art. 365, a building owner’s auction rights, and the requirement that the mortgagor and the building owner be the same person. This paper reviews and analyzes the scholarly and practitioner’s debates,concluding that we should interpret that the mortgagee cannot auction buildings where the building owner has statutory superficies on the land, and that building owners do not need the right to auction a building together with the land in the foreclosure process of the land. In addition, a broader court interpretation is needed so that land mortgagees can auction a building owned by others, not the mortgagor, to adjust the interest of all parties.