[2] In a case where the ownership of land or a building on the ground which became the object of a compulsory auction is transferred to a buyer due to a compulsory auction, the standard time to determine whether the land and a building on the ground belong to the same person, which is the elements for establishing legal superficies under customary law for owning a building (=the time the seizure or provisional seizure takes effect)

[2] In a case where the ownership of land or a building on its ground, which was the object of a compulsory auction, is transferred to a buyer in the procedure due to a compulsory auction, whether the land and the building on its ground belong to the same person should be determined not by the price of the sale price acquired by the purchaser in full but by the time the seizure takes effect. The so-called third acquisitor who acquired the ownership of the object of auction after the attachment became effective, cannot set up against the purchaser in the auction procedure, and further, if the sale price is fully paid, the cancellation should be commissioned ex officio if the sale price falls under the description of the burden of the real estate for which the purchaser did not take over (see Article 144(1)2 of the Civil Execution Act). It is more so in light of the fact that the owner at the time of the compulsory auction, who was the full payment at the time of the sale price, cannot have any particular meaning in this problem. Meanwhile, if there was a provisional seizure before the compulsory auction procedure, it should be determined as to the real estate which was executed by the provisional seizure and its execution from the original execution.

1. In a case where the land and buildings belonging to the same person belong to a different owner due to a compulsory auction or a public auction under the National Tax Collection Act, the owner of the building shall acquire legal superficies from the owner of the building for the purpose of owning the building unless otherwise stipulated that the owner remove the building (see, e.g., Supreme Court Decisions 67Da1831, Nov. 28, 1967; 96Da40080, Jan. 21, 1997). In order to establish legal superficies under the original customary law, land and buildings do not need to be owned by the same person from the beginning of the beginning, and it is sufficient that the same person owns the land and buildings on the ground at the time when the ownership changes effectively (see, e.g., Supreme Court Decision 95Da9075, Jul. 28, 1995).

However, barring special circumstances, the legal status of a purchaser of an object in the procedure for compulsory auction of real estate shall be determined based on the time the seizure takes effect, and there are many parties who have interests in the procedure, such as applicants for purchase, security interest holders, creditors, debtors, and other parties who have interests in the procedure, calculated their own interest on the premise of the legal status determined as such. Furthermore, the participation in the auction procedure, performance of obligations, subrogation and other property decisions may result in the final owner due to the auction if one or all of the lands and buildings on the ground becomes the object of auction. This would result in the final owner’s change if the auction becomes the object of auction, then this would result in the burden of the right to use the land to own the building, and there is no significant significance for interested parties, such as whether

Therefore, in a case where the ownership of land or a building on its ground, which was the object of compulsory auction, is transferred to a buyer in the procedure due to a compulsory auction, whether the land and the building on its ground belong to the same person shall be determined on the basis of the time when the seizure takes effect, not the sale price acquired by the purchaser in full, but the time when the seizure takes effect. Furthermore, the so-called third-party purchaser who acquired the ownership of the object of auction after the seizure takes effect, cannot oppose to the purchaser in the auction procedure, and further, since the transfer registration completed in its name constitutes the entry of the burden of the real estate that the purchaser did not take over (see Article 144(1)2 of the Civil Execution Act), if the sale price is fully paid, the cancellation thereof shall be commissioned ex officio (see Supreme Court Decision 200Da29295, Aug. 23, 2002). Accordingly, the owner at the time of full payment of the sale price cannot have any particular meaning in this connection.

Meanwhile, in a case where there was a provisional seizure prior to the ruling of compulsory commencement, the provisional seizure was executed as a result of the compulsory commencement of auction and was included in the execution of provisional seizure as a result of the execution of the principal execution (see, e.g., Supreme Court Order 2001Ma6620, Mar. 15, 2002). Therefore, in a case where there was a provisional seizure of real estate which was the object of auction and the auction was conducted as a result of the execution of the provisional seizure, whether the land and the buildings on the ground belong to the same person shall be determined as of the time when the provisional seizure takes effect (see Supreme Court Decision 89Meu24094, Jun. 26, 190).

In contrast, Supreme Court Decision 70Da1454 Decided September 29, 1970; Supreme Court Decision 71Da1631 Decided September 28, 1971, which held that the land and its above ground buildings shall belong to the same person as at the time of sale shall be modified to the extent that it conflicts with the opinion of this case.

2. According to the reasoning of the judgment below and evidence duly adopted and examined by the court below, the plaintiff purchased from the non-party 1 and the non-party 2 on June 13, 2005 391m2 (hereinafter "the land in this case") and completed the registration of ownership transfer under the name of the plaintiff on November 30, 2005. Meanwhile, the non-party 3 purchased the ownership transfer registration under the name of the non-party 1, etc. on the land in this case which was owned by the non-party 1, etc. on January 3, 2003, the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 2 had completed the registration of ownership transfer registration under the name of the non-party 1 and the non-party 2, the non-party 2 and the non-party 2, the non-party 2, the non-party 1 and the non-party 3, the non-party 2, the non-party 3, the above provisional attachment.

Examining these facts in light of the aforementioned legal principles, as to the building of this case which is the object of the above auction prior to the decision to commence compulsory auction of this case, the provisional seizure was made by the Yellow Agricultural Cooperative, and thereafter the provisional seizure was carried out as the seizure, the issue of whether the defendant, the purchaser of the above auction procedure, obtains statutory superficies under customary law shall be determined not on June 9, 2006, but on October 20, 2003, when the provisional seizure became effective, whether the land of this case and the building of this case on the land of this case belong to the same person. Nevertheless, the court below determined that the same person owns the land of this case and the building of this case as the compulsory auction of this case at the time when the defendant paid the sale price in full, and it is erroneous in the misapprehension of legal principles as to customary statutory superficies, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)