토지임차인의 지상물매수청구권 - 대법원 2013. 11. 28. 선고 2013다48364, 48371 판결을 중심으로 -

The provision of Korean Civil Act on lessee‘s right to demand the purchase of a building, etc. (Article 643 of Korean Civil Code) is brief, so there is some controversy in interpreting it. One of the major issues is whether only the owner of a building or any other structure has the right to demand purchase of it. In other words, the problem is whether, in the case of a land lease where a building on the land is unregistered or unlicensed and the unregistered and unlicensed building is purchased from the previous lessee and possessed by the present lessee, the lessee may ask the lessor to purchase the building. On the former occasion, the Supreme Court of Korea has ruled from old times that the lessee may ask the lessor to purchase the unregistered building as stated in Article 643 of Korean Civil Code(23. December 1997, case number: 97Da37753). According to the preceding precedent, even if the lessee of the land has not acquired the ownership of the building on the land because of no name in the registration as owner, he or she may ask the lessor to purchase the building. The purpose of lessee‘s right to demand purchase of building, etc. is to protect the lessee politically. It enables him or her to withdraw investment costs. Moreover, if the unregistered vendee of the building possesses it as performance of a sales contract, he or she has the right to possess or use it and the position of law or fact to dispose of it. Therefore, lessee‘s right to demand purchase of building, etc. is granted to a lessee who purchases the unregistered building, and so the thesis of the precedent as an object of this study is proper. However, if the lessee asks the lessor to purchase the unregistered building, the lessor may claim the plea of simultaneous performance between his or her own obligation of payment of purchase price and the lessee's obligation of registration of ownership transfer.