[가옥철거등][집22(3)민,71;공1975.1.1.(503),8166]
(a) Whether an owner of land who created a superficies may exercise a real right claim against an illegal occupant;
(b) Whether a landowner who has created a superficies may claim damages against an illegal occupant;
1. The owner of the land who has created the superficies may exercise a claim against the illegal possessor as a real right; and
2. The owner of the land who has established a superficies cannot enjoy profit from the land which exists, so he/she cannot claim damages from an illegal occupant unless there are special circumstances.
Articles 211, 214, and 279 of the Civil Act
Plaintiff
Defendant-Appellee et al., Counsel for the defendant-appellant
Jeju District Court Decision 73Na40 delivered on May 29, 1974
Of the parts against the defendant in the original judgment, the part ordering monetary payment shall be reversed, and the case shall be remanded to the Panel Division of Jeju District Court.
The appeal against the remainder shall be dismissed.
With respect to the grounds of appeal by Defendant Attorney:
A false land ownership does not extinguish all or part of a superficies on the land, but it is merely a restriction on the exercise of the superficies within the scope of the superficies. On the other hand, when superficies are extinguished, the land ownership is a legal principle restored to the right automatically without complete restriction. Therefore, even if the owner establishes superficies on the land owned by him/her, it is reasonable to interpret that the owner has a real right right claim to seek the exclusion of disturbance against the person who illegally occupies the land, and there is no reason to discuss this point in the original judgment that cited the exclusion of disturbance. The defendant's objection against the approval of the superficies cannot be interpreted as the conclusion of the original judgment that rejected the objection by the original judgment, and therefore, it cannot be concluded that there is a omission of judgment in the original judgment.
There is no reason to discuss this issue.
In its reasoning explanation, the original judgment is a registration of creation of superficies for the purpose of owning a building in the name of the Jeju Bank Co., Ltd., and the defendant illegally occupied the building site by constructing the building on the site. As such, the defendant decided that he is obliged to remove the building, deliver the site, and pay damages from the rent party until the completion of removal of the building and delivery of the site.
However, as to the site of this case, the plaintiff who was established a superficies for the purpose of owning the building is entitled to be limited to the exercise of ownership even if the owner of the building site so long as it continues to exist, and thus, barring any special circumstance, the plaintiff cannot claim damages equivalent to the rent, barring any special circumstance, but the judgment of the court below that held that the plaintiff can claim damages from the rent-free party which was not used due to the defendant's illegal occupation, is erroneous in the misapprehension of legal principles as to superficies, and there is a ground for appeal as to this point.
Therefore, pursuant to Articles 400, 406, 395, and 384 of the Civil Procedure Act, it is so decided as per Disposition by the assent of all participating Justices.
Justices Rin- Port (Presiding Justice)