지하공간에서 건설 공사를 위한 법제 고찰

Abstract

The necessity for construction projects in underground spaces is gradually increasing. Currently, since there is no special law governing underground spaces, the Civil Code is applied. However, the Civil Code does not present a legal concept for underground spaces or deep strata. Therefore, there has been ongoing debate on whether the effect of land ownership under the Civil Code is recognized or excluded in deep strata. The “Deep Strata Act (Draft)” proposed in September 2020 mainly stipulates that when constructing or managing transportation facilities in deep strata, it is permissible to use the deep strata underground, and in such cases, compensation for the land as prescribed by the “Land Compensation Act” is not required, nor is it necessary to establish a separate superficies under the Civil Code. This premise implies that ownership rights do not extend below the boundary depth. However, simply limiting private ownership rights for public projects could lead to essential infringements on property rights, which necessitates considering the relationship between ownership and superficies under the Civil Code, as well as compensation for losses, when enacting special laws. Particularly, unlike the Japanese Civil Code, Article 212 of the Korean Civil Code includes an abstract provision of “legitimate interest,” making it difficult to adopt the Japanese Deep Strata Act as is. Under the current legal system, construction projects in deep strata require individual assessments of the scope of ownership, as well as the establishment of separate superficies and compensation for losses. Nevertheless, for the efficiency of construction projects in deep strata, it is believed that not only the enactment of special laws but also a legal review of the Civil Code and other legal principles is necessary.