공동저당에 있어서 법정지상권의 성립과 일괄경매청구권의 개선방안에 관한 연구

• 영문명: A Study on the Improvement Plans of the Blanket Auction Claim Right and Formation of Statutory Superficies in Joint Mortgages
• 발행기관: 한국부동산학회
• 저자명: 전장헌(Jun, Jang Hean)
• 간행물 정보: 『부동산학보』不動産學報 第49輯, 32~46쪽, 전체 15쪽
• 주제분류: 경제경영 > 경제학
• 파일형태: PDF
• 발행일자: 2012.06.30

영문 초록

1. CONTENTS (1) RESEARCH OBJECTIVES As Korea's legal system treats land and building on it separately it cause serious loss socially and economically if separate disposal between land owner and building owner is made by the execution of the mortgage right. Thus, the current law formation statutory superficies (366 of the Civil Act) and blanket auction claim (365 of the Civil Act) that enables the mortgage can make an auction of land and building together. However, there are sharp conflicts between the interested parties. In particular, as to the case that the joint mortgage is installed to land and building, and the mortgagee dismantles the mortgaged building and formation a new building, there were opposing theories and precedents. Accordingly, this study aims to examine the existence of building at the time of mortgage installation among the conditions of statutory superficies through literature survey and then to investigate if statutory superficies can be established and blanket auction claim right can be transferred to the land mortgage holder when a new building is built after destroying the joint mortgage objective. Through it, the study intends to interpret statutory superficies and blanket auction claim right harmoniously and to protect the rights of land mortgage owner and the interested parties equally. (2) RESEARCH METHOD The methodology is to analyze and investigate major literature and supreme court precedents, and compare with foreign legislation cases in order to suggest any legislative problems and improvement plans. (3) RESEARCH FINDINGS This study suggests a new interpreting theory on the building at the time of setting mortgage right among the conditions of statutory superficies, and discovers the rights between statutory superficies and blanket auction rights when a new building is established in place of the joint mortgage objective. 2. RESULTS As a result, as the condition of statutory superficies according to the Article 366 of the Civil Act, it is valid to allow statutory superficies as long as the building at the time of setting the mortgage right in order to protect the right of the mortgagee, and if a new building is installed, it is more valid not to acknowledge statutory superficies to protect exchange value of a land mortgagee. And, if statutory superficies is not allowed, blanket auction claim right of land mortgage right must be interpreted as a compulsory provision to take blanket auction with building, and even if statutory superficies being allowed, blanket auction seems proper to protect the rights of the mortgagee and the interested parties equally when there is a consent of the building owner.

목차

ABSTRACT

Ⅰ. 서 론

Ⅱ. 법정지상권과 일괄경매청구권의 의의 및 취지

Ⅲ. 민법 제366조에 의한 법정 지상권의 성립요건

Ⅳ. 공동저당의 건물이 신축된 경우에 법정지상권의 성립여부와 일괄경매청구권의 개선방안

Ⅴ. 결 론

參考文獻

키워드

법정지상권 일괄경매청구권 공동저당 저당권자 저당권실행 부동산경매 statutory superficies Blanket auction claim right Joint Mortgages mortgagee execution of the mortgage right real estate auction