관습상 법정지상권의 입법화 논의

• 영문명: A Study on the Legislation of Customary Legal Superfices on Customary Law
• 발행기관: 한국부동산법학회
• 저자명: 이청조(Chung Jo Lee) 이복(Bock Lee)
• 간행물 정보: 『부동산법학』부동산법학 제12집, 95~112쪽, 전체 18쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

The paper is aimed at presenting and solving the problem about the legislation of legal superfices. The arguments starts from the discussion about buildings. The result shows that there is no need to treat buildings separately and independently from land. At the same time, it becomes clear that the purpose of the legislation is different from that of the legal superfices on customary law. In order to solve the problem fundamentally, I propose that land and buildings should be treated in a single legal formation based on the reality. The revised bill Article 279 Clause is a tryout to legislate the legal superficies on customary law by precedents. However, as known to all, the legal superficies on customary law is particularly acknowledged to supplement the legal vacuum in real life where land and buildings are respectively independent real estate. This system got a lot of critiques for its poor theoretical basis. Legal superficies on customary law got its premise on that treating land and buildings as different real estate has been our custom. Through investigation of its development process, however, a bit of distortion on that custom is revealed. It is hard to imagine someone possessing land and build sells or donates them respectively. But for some reasons, when the possessors of land and buildings are happened to be different people, the court admitted their ownership as the legal superficies on customary law. This law is still applied on the courts and the decisions of courts has been elastically deal with the change of society. Nonetheless, when people transfer land or buildings by their discretion, they do not make efforts to be in normal legal relation for existence of legal superficies on customary law. Moreover, since the concepts of legal relation in terms of real estate, land and buildings are widely known unlike in the past, it is unnecessary for courts to strongly protect people with legal superficies on customary law, automatically presuming the concerned parties intention to set up superficies between them.

목차

Ⅰ. 서론

Ⅱ. 관습상 법정지상권 성립요건에 대한 판례의 태도

Ⅲ. 개정안 '제279조의 2'의 검토

Ⅳ. 결론

【참고문헌】

【Abstract】