[가건물철거등청구사건][고집1976민(1),344]
Whether statutory superficies also extends to a building
The scope of legal superficies is limited to the existing building itself at the time when the owner of the building site and the building becomes different, and the newly extended part is subject to removal because it is not protected as the legal superficies even if it deals with the original building in accordance with the suitability theory.
Article 366 of the Civil Act
Jeju Bank, Inc.
Defendant 1 and six others
Seoul Central District Court (73 Gohap1627, 74 Gohap845) in the first instance trial
1. The plaintiff's appeal against the main claim is dismissed.
2. Defendant 1 shall leave Jongno-gu Seoul, Jongno-gu, Seoul, 2 to 36 large 16 large 16:3 Hobbe, 167, 167, and among the buildings listed in the annexed list list on the ground, he shall be removed from 1:7 Hobbe, and Defendant 2, 3, 4, 5, 6, and 7 shall remove 9 small 1:7 p.m. from among the above buildings, part 1:7 p.m. of the same drawing indication (i). From March 1, 1976, 2,260,620 won, and 2.1,2,330 p.m. from March 1, 1976, he shall pay to the Plaintiff the amount of money calculated by the ratio of KRW 1,833 p.m. per month for each 30 p.m. connected each point in the ship.
3. The plaintiff's remaining conjunctive claims are dismissed.
4. The costs of appeal shall be borne by the defendants.
5. The above paragraph 2 can be provisionally executed.
The plaintiff around 16: (a), (b), (d), (f), (g), (g), (g), (i) and (i) part 16: 3 of the 16th and 5th and 6th and 5th and 6th and 6th and above of the 3rd and above, which are buildings listed in the annex sheet in the annex sheet in Seoul Jongno-gu Seoul, Jongno-gu, 16th and 16th and 16th and 3th and 3th and above of the 5th and above of the 5th and above, which are buildings listed in the annex sheet in the annex sheet in the annex sheet in 16th 36th 16th 16th 16th 16th 16th 16th 16th 1, and the defendant 1 removed the above buildings and paid 30th 2,213,130 won to the plaintiff jointly and severally, and the amount of money in proportion to 54,90 won per month.
The judgment that the lawsuit costs shall be borne by the defendants and the declaration of provisional execution shall be sought, and the conjunctively, defendant 2,3,4,5,6,60 won and the declaration of provisional execution shall be sought from March 1, 1976 that the plaintiff shall pay to the plaintiff 2,268,120 won and from March 1, 1976 at the rate of KRW 1,833 won per month for the above site (in the first instance, the plaintiff was added to the conjunctive claim).
The original judgment has the same judgment as the cancellation of the plaintiff's failure part of the original judgment and the primary claim.
1. Judgment on the main claim
In light of the above facts, the plaintiff 1 was owned by the non-party 1, 3, 4, 5, 6, and 7. The non-party 1's non-party 2's non-party 1's non-party 1's non-party 2's non-party 1's non-party 7 non-party 2's non-party 9's non-party 1's non-party 2's non-party 1's non-party 9's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 9's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 3's non-party 1's non-party 3's non-party 1's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's non-party 1's.
Therefore, the Defendants, the owners of the above building (except Defendant 1), have acquired legal superficies for the use of the above building against the Plaintiff Bank, which is the owner of the building in this case due to the above auction. The part above (i) part above (i) on the drawing No. 1, 7 Hobbebbeb, 9, and the part above (i) part above (i) on the map No. 2, 1, 2, 3, 5, 5, 6, 7, and 30 square meters in sequence from each point of the above No. 2, 1, 2, 30, 5, 5, 5, 7, 1, among the building site, have no dispute between the Plaintiff and the Defendants. Thus, the remaining Defendants except Defendant 1, on the ground that they occupied the above 30th portion of the building site owned by the Plaintiff without title, sought removal of the above building and delivery of the above site to the other Defendants, and the Plaintiff’s claim for damages against the rent of the above site No. 30 is without merit.
2. Judgment on the ancillary claim:
(1) Next, even if the legal superficies is acknowledged within the scope necessary for the use of the above building, the scope is limited to the building itself, which existed at the time when the owner of the above building site and the building was changed. Since the part (i) of the building indicated in the annexed drawing No. 1 and the part (ii) of the defendants except the defendant 1 were extended later, the defendant 1 shall move out from the part (i) of the above (i) one square 7 square knb and nine knb, and the defendant 2, 3, 4, 5, 6, and 7 shall be asserted that the defendant 1 shall have the duty to remove the above part (i) of the building indicated in the first drawing No. 1, (ii) and (iii) of the above part (i) one 7 square knbbbeb and nine kbbeb and nine g nbs in the above building were not existing at the time of the establishment of the right to collateral security against the building site, the remaining part of the building site shall not be asserted against the plaintiff.
The defendants asserted that the above (i) part of the extended (i) part is consistent with the original building, and therefore the plaintiff's claim seeking the removal of this part is unjustifiable. However, even though it is dealt with with the original building in accordance with the theory of conformity with real estate, even though it was consistent with the original building, it cannot be said that the legal superficies for this part is acknowledged as to the extension and corresponding part of the ground that existed at the time of the establishment of the right to collateral security, and therefore, the defendant's claim is groundless.
(2) As to the Plaintiff’s claim for rent, the following facts are acknowledged as follows: (a) 1; (b) 2; (c) 3; (d) 4; 5; 7; and (g) 30 square meters of the above points, among these sites; (b) 30 square meters of the above points; (c) 2; (d) 9; (e) 1; and (e) 30 square meters of the above portion of the building; (e) 19; (e) the Defendants, except Defendant 1, are obligated to pay rent to the Plaintiff on the 30 square meters of the above site from the date following the date on which the ownership of the building was transferred to the Plaintiff; and (e) 9; (e) 19; and (e) 19; (e) 2); (f) 3; and (f) 9; and (f) 19; and (f) 19; and (f) 3; and (f) 19; and (f) the remaining amount of the legal superficies established on the above site, 30 shall be dismissed from 16.
Judges Mahman (Presiding Judge) Macul