지상권 갱신청구권의 행사와 지상물매수청구권: 미등기 법정지상권의 소멸로 인한 분쟁 예방을 위한 시론 -대상 판결: 대법원 2023. 4. 27. 선고 2022다306642 판결-

This article is a critical review on the ruling of the Supreme Court of Korea (2023. 4. 27. 2022da306642) on whether a legal superficies extinguishes upon the expiration of its term if the right holder does not request a renewal from the landowner, whether the right holder can exercise the renewal request, and whether the right holder can claim the purchase things on the ground. The ruling states that the exercise of the renewal request must be made “without delay after the expiration of the term of the superficies” and cannot be made after a considerable period has passed. It also states that the right to claim the purchase things on the ground can only be exercised when the right holder has the renewal request right and has exercised it, but the landowner does not wish to renew the contract. Therefore, if the renewal request right is extinguished, the right to claim the purchase things on the ground does not arise. However, the author criticizes this ruling, arguing that since the Korean Civil Code does not explicitly stipulate the period for exercising the renewal request right, the ruling’s logic that the renewal request or purchase claim cannot be exercised if not made “without delay” after the expiration of the term lacks legal basis. The author suggests that interpreting the exercise of the renewal request right as a prerequisite for the purchase claim is excessively harsh on the right holder and argues that the conditions for the renewal request and purchase claim should be interpreted more favorably for the right holder. Furthermore, the author proposes legislative solutions to prevent social confusion, such as utilizing a unified auction system and presuming land lease contracts, as it is not easy for the general public to determine the establishment time of a legal superficies.