In our legislation, land and buildings are treated as a separate real estate. Under Civil law article 366, when the land and building belong to the each other owner by auction of pledge, the superficies is legally justly admitted. That superficies is called the legal superficies. Legal superficies is a peculiar system that regulates utilization relation of land and building.
In case the owner of land and building are separated by auction of security, legal superficies is a specific system on control of using land for building's owner who has not an opportunity to acquire right in order to utilize land.
The main purpose of legal superficies is to guarantee utilization of land for the owner of building. The existence of legal superficies to the land purchased by auction is very important for the legal position of the buyer of land.
But by the article 366, it is not clear when the legal superficies is established and not concrete what situations and conditions are necessary. Therefore, the conditions and contents of the legal superficies have been arranged by the existing theories and precedents, and theories and precedents show a tendency to expand the conditions.
There are four conditions of legal superficies recognized in theories and precedents. First, existence of building at the time of laying in pledge. Second, the owner of land building is identical. Third, laying in pledge to land and building which one or both side. Forth, separation of possession by practice of auction.
We know that the system has strengthened the regal superficies by insisting on the public benefit of social and economic aspects called as the building protection, which gives the significant limitation to the owner of land and gives the burden to the bidder at the same time.
And the similar cases have recently reversed the past judgments of the Supreme Court.
Understanding and judging on the establishment of legal superficies is difficult and hard.
Accordingly, the bidders must avoid the bidding of the properties that are subject to the legal superficies establishment if possible. But, if the bidder must unavoidably participate in the bidding, it is desirable that the bidder will study the bidding properties a lot through the thorough analysis of judicial precedents and close field checkup before the bidding.
Also, this system which becomes a significant limitation to the owner of land must be approved only in unavoidable cases. That is, it must be approved only when the base is clear in a point of public request and private benefit.
It is not reasonable that the legal superficies, as a type of real estate objects that must have the clear conditions and contents, have been solved by the Supreme Court as it shows a variety of judicial precedents due to disputes.
Therefore, the followings are alternative proposals to solve problems.
First, the court can actively intervene in the auction before the auction and then can lead a package auction.
Second, the party can report the facts of the properties that are subject to legal superficies to the court.
Third, the properties that are not subject to the regal superficies must be collectively appraised and so the ground properties must be included in the bidding price.