법정지상권이 성립된 건물의 이전과 연체지료의 승계 여부

A study on whether or not the overdue rent is succeeded as the alteration of ownership of the building, which is regarded to have the right to use another person's land as legally for granted

1. This paper deals with a sobering issue whether the overdue rent is shifted onto the successor of the building which is regarded to have the right to use another person's land as legally for granted(hereinafter RUAPL), when the ownership of a building is transferred. It has practical meaning in a sense that the landowner is legally entitled to terminate RUAPL when the total period of rent-indebtedness amounts to more than two years.

2. The Supreme Court makes its stance clear with respect to this matter. There are two notable decisions and the gist of which is as follows.

① In order to insist the rent to successor, the landowner must register the amount of money and the paying date first. Or else, the landowner cannot insist the overdue payment of transferor's to the transferee of the building.

② In the case of RUAPL, the rent should be decided by the consent of either party or by court decision. And if the amount of the rent has not been arranged by the court, then the landowner cannot nullify RUAPL although the rent has been overdue more than two years.

③ Arrangement of rent by the court has general effect to a third party(esp. to successor), only when the decision is rendered through a non-substantial action that demarcates the proper amount of money.

④ If the overdue payment extends over the alteration of landowner, then the landowner cannot nullify RUAPL, since the period of two-year should be fulfilled to each and specific landowner relation.

3. However, this article takes a dim view of those Supreme Court decisions.

Each party of the landowner or the holder of RUAPL has substantial or material right to directly manage or entirely dominate his property, therefore the holder of RUAPL is able to freely dispose of his RUAPL without the landowner's consent, and the landowner can not interfere with or hamper the disposal.

Once the rent has been settled between the landowner and the holder of RUAPL, this paper contends that the obligation to pay the rent, which is the other side or the basic element of RUAPL, transfers along with the transfer of RUAPL. So, the successor of RUAPL can't avert the succession of the obligation.

Furthermore, even in a occasion that the ownership of the building transferred without or before the rent being decided, this paper contends that the landowner can terminate RUAPL if only the total period of overdue rent exceeds more than two years, because the obligation for the holder of RUAPL to pay the rent is required per se or as legally for granted, and the overdue period must be counted from the landowner's perspective.

While the Supreme Court rules that the rent is succeeded only when the rent is decided through a non-substantial action, this paper contends that there is no ground to see a non-substantial court decision, which is merely an inter-party compromise, has general effect to a third party, and it is not acceptable to relate rent succession to the form of court ruling.