不動産의 一元化에 관한 硏究
- 원문 URL
The purpose of this research was to achieve the unification of real estate by modifying existing attitudes of the Civil Law Act which treats lands and buildings separately, and which regards each as the independent property which can be owned separately. Therefore, general problems from the current civil laws, which regard lands and buildings as separate objects were surveyed to achieve the unification of real estate. They are as follows. Firstly, in civil law, the real estate is the land, and the buildings on it. Though lands and buildings on them have been treated as separate real estate, there are also some interpretational problems. Secondly, the problems in treating land and buildings on it separately are that, in the relationship between the buildings and the validity of land ownership, the first is the problem of real estate correspondence, the second is partial invalidity, the third is legal surface rights, and the fourth is appraisal rights for properties on the surface. In the relationship of land and separate building ownership, a problem is about rights for using lands in the case of separate ownership(구분소유권). Thirdly, in the separate ownership of group buildings(집합건물), lands and buildings are unified though the rights of using building sites are the rights of using land. However, buildings are not permanent different from lands, there is an issue of unifying them focusing on the land which is permanent. Focusing on the interpretations of the unification of real estate, some problems in the current civil law were composed as follow. In chapter 1, focusing on general theories about fixtures on land, the purpose, scope and methods of this research were suggested by describing problems in composing the land and the buildings on it separately in the current civil law, and by describing the purpose of this research to achieve the unification of real estate. In chapter 2, regarding the history of law about real estate and the foreign cases, the history was revealed by analyzing the Roman Law and the German Law. In addition, through the foreign legislation such as that of France, Germany, England, the USA, Japan and China, the methods of composing the unification of land and buildings, and how the unification of land and buildings is publicly announced through the indirect official notices were analyzed and examined. In chapter 3, regarding the history and legislation of Korean real estate, the traditional legislation of real estate from the ancient three countries to the Chosun Dynasty were surveyed, and then the modern ownership system of land in the each age such as Korean Lost Empire, Japanese Residency-General ruling age, Japanese Imperialism ruling age and the US Army Military Government in Korea. Next, the legislating intents of lawmakers were revealed by analyzing the legislative data about discussing the unification of real estate in Korea and those data related to legislating the Japan Civil Law. In chapter 4, as the unification theory of real estate in the current legislation of real estate, the legal aspects of land and buildings were surveyed from social and economic viewpoints. In the relationship between the buildings and the effects of land ownership, buildings as fixtures on land, the problem of real estate correspondence, the problem of partial invalidity, the problem of legal surface rights and the appraisal rights of fixtures were analyzed and examined in interpretational aspects. Furthermore, the theory of unification was discussed with the problem of the rights of using land in the relationship between the land and the separate building ownership. In chapter 5, the problems related to buildings, which are fixtures on land were discussed in conclusion. Because the land and buildings are closely related and are traded concurrently in general commercial trades, it is necessary to regard the buildings as the object of land ownership, to interpret the unifications of real estate in that buildings correspond to the land, and, about the problem of partial invalidity, to interpret elastically according to the principle of faithfulness considering the trade customs that there may be the legal acts even though there are no invalid parts. From the viewpoint of the unification of land and buildings through securing the rights to use lands by building owners, it was pointed out that a new viewpoint is necessary about the legal surface rights in common law, which have been regarded as unreasonably infringing upon the interests of land owners. Furthermore, if the current problems about real estate in Civil Law are maintained without the basic modifications, there could be a problem of official notification if the building ownership can be transferred to lessees without the registration due to the exercise of appraisal rights for surface fixtures, and there could be another problem of a third party with good will, who traded by relying on the registration, could be protected. If the meaning of formed rights (형성권) in the law of property is considered, it can be asked whether it is reasonable to change the ownership only with the unidirectional opinions or expressions. If the ownership can be changed only after the opinions of the other party are presented, the meaning of formed rights decrease considerably. In addition, if the ownership of a building can be transferred by the exercise of appraisal rights without the registration, there can be a problem of a lessor becoming responsible for unexpected burdens. Therefore, those problems in current Civil Law can be eliminated by unifying the land and buildings on them.