대지권사용권 성립 전 토지에 설정된 저당권자의 지위 - 집합건물법 제20조의 해석과 관련하여 -

Under the Korean Civil law land and buildings are considered as separate properties. According to the regulation of the ‘Act on Ownership and Management of Condominium Buildings’ (hereinafter referred to as ‘the Act’), however, a sectional owner’s right to use site shall be in accordance with the disposition for the section for exclusive use and a sectional owner may not dispose of the right to use site for the building, separately from the section for exclusive use. Since the section for exclusive use and the right to use site are treated as an inseparable part of the sectional ownership in a condominium building, the mortgage created over the whole land prior to the establishment of the right to use site, shall technically lapse by the enforcement of the mortgage created on the section for exclusive use later. However, when the successful bidder is granted a special auction sale condition on acquiring the mortgage created over the land, the mortgage shall not lapse, but the section for exclusive use and the right to use site shall be separated. In such a case, provided that there is an implied agreement that any correlation between the ratio of the area for exclusive use and the specified section for exclusive use is established due to the publicity, the sectional owner who used a site without the right to use it, shall be bound to return it as unjust enrichment to the person who acquired the ratio of the site for the building. Meanwhile, a prior mortgagee may sell the mortgaged immovable by auction to obtain satisfaction for his claim. In such a case, the creation of a legal superficies for the sectional owner depends on whether the building exists at the time of the creation of the mortgage over the land.