법정지상권과 저당권의 효력이 미치지는 범위

In Korea, building is treated as a separate thing from Building site. A building is destined to be demolished if it fails to secure the right to use the building site. In other words, a building owner who is not the owner of the land must secure the right to use the building site to avoid demolition of the building. The right to use the building site is the accessory right for the building. A lease or superficies on building site is typical examples of such a right to the building site. Usually superficies arise from the agreement of the parties, however, it can be established by the law preventing the demolition of the building. Since the right to use the building site, such as a lease or superficies, is an accessory right to the building, the mortgage on the building also has an effect on it and it shall follow the disposition of the building. This appendant nature of a lease or superficies of the building site is reasonable when the mortgage is taken out after the lease or superficies of the building site occurs. However, when the mortgage is taken out on the building before the owner of the building obtains the right to lease or superficies, it may be confusing whether the appendant nature of a lease or superficies gives the mortgagee an unjust advantage of the increment of value of security. The precedent makes it clear that the mortgage has an effect on the subsequent superficies on the building site and the appendant nature of the superficies does not unjustly increase the value of the mortgage. The conclusion of the precedent is justified, considering that ; in case of subsequent increment of the value of security, it is difficult to deduct the value increased from the total value the building ; it often happens the value of the security is increased by the unforeseen circumstances ; the building shall be demolished if the mortgage has no effect on the subsequent superficies.