가압류의 개별상대효와 관습법상 법정지상권 - 대판 2012. 10. 18. 2010다52140과 관련하여 - = Individual relative effect of provisional seizure and statutory superficial right under customary law

다국어 초록 (Multilingual Abstract)

In the Korea’s Supreme Court’s 2012. 10. 18. 2010da52140 judgement(hereinafter referred to as “the judgment”), the land owner and the building owner were different, and the creditor of the building owner made the provisional seizure first. After that, the provisional seizure creditor applied for a compulsory auction with respect to the building, and the landowner then acquired the ownership of the building, and a third party received the successful bid for the building, paying the sale price in full, and acquired the ownership of the building. Whether or not the successful bidder for the building acquires the statutory right to land under the customary law has become an issue. Statutory superficial right is the only customary law recognized only in South Korean civil law. Among the requirements, in relation to the identity of the owner of the land and the building, the question was whether it could be affirmed if it was not the same at the time of provisional seizure or seizure but became the same before the full payment of the successful bid price. Previously, there was confusion in the case law, but the judgment was changed to judge the same-ownership based on the time of provisional seizure. The key argument of the Supreme Court is that ‘the third acquirer after the seizure takes effect cannot oppose the buyer in the auction procedure. The registration of transfer of ownership in the name of the third acquirer is entrusted with cancellation, so the owner at the time of full payment of the sale price has no particular meaning. In the case of provisional seizure, the execution of provisional seizure is subsumed by the main execution, and it is the same as if there had been the main execution from the beginning.’ In this paper, I first dealt with legislative cases and interpretations of the legal treatment of buildings in other countries (especially Japan). In addition, South Korea's special individual relative effect was examined in relation to the change in ownership of the disposition prohibition effect of provisional seizure. Based on this, I have come to the conclusion that the judgment is unfair. The key arguments of the major authors that led to this are summarized as follows. ① According to the individual relative effect of provisional seizure, the effect of acquisition of ownership after provisional seizure is not denied, and cancellation registration must not be made. ② Even considering the balance with lien, it is unreasonable to advance only the requirements for establishment of statutory superficial right to the point of provisional seizure under customary law. ③ The effect of the prohibition on the disposition of provisional seizure is to protect the private interests of the provisional seizure creditor, and even if a procedural effect is taken, it must be treated differently from the case of provisional seizure of bare land, and the judgment is not a case in which the effect of prohibition of disposition should be applied. This is because the effect of prohibition of disposition is to protect the interests of the provisional seizure creditors, and in the judgment, the provisional seizure creditors will naturally recognize the effect of the disposition after the provisional seizure.