[건물철거등][집31(4)민,41;공1983.10.1.(713),1330]
Where a registration of ownership transfer has been made only on a site after all the site and buildings are sold to others, customary legal superficies
If the title of ownership of a building remains in the seller by purchasing all the building site and building from the original owner and completing the registration of ownership transfer only on the building site, even if only one of the building site and building is sold, it is not a sale of any one of the building site and building, and thus, legal superficies cannot be recognized. In such case, the problem of occupation and use of the building site and building will be resolved by a contract between the parties to the sales contract.
Article 366 of the Civil Act
Plaintiff 1 (the deceased non-party 1’s attorney Choi Young-gu, Counsel for the plaintiff-appellant) and seven others
Defendant 1 and 6 Defendants, et al., Counsel for the defendant-appellant-appellant
Seoul High Court Decision 82Na918,919 decided January 20, 1983
All appeals are dismissed.
The costs of appeal shall be assessed against the defendants.
The grounds of appeal are examined.
1. According to the records, since the fact that Defendant 5 occupies 23 squarebebbebs and 9 square meters in the part of the real estate stated in the attached Table 2 attached to the judgment of the court below among the real estate stated in the attached Table 2 attached to the judgment of the court below does not conflict between the parties, it is just that the court below ordered the above defendant to leave the above building on the premise of the fact that the defendant 5 occupies the above building part, and there
2. Since statutory superficies under customary law belongs to any other person among land and buildings owned by the same person, and if the building owner uses another person's land without any right when there is no agreement between the parties on the right to use the building, there are many cases where the building owner would cause social and economic disadvantage to remove the building, so it is recognized to prevent the building from being removed by transferring the building owner's land to legitimately use the building site. As determined by the court below, the building site and the two buildings above were owned by the Gangwon-do Educational Institute, and the above building site and the building were originally owned by the school foundation, but the above building site and the building were sold to Nonparty 2, while the above building site and the building were transferred to the above building, the above building owner's title remains in the name of the above Gangwon-do Educational Institute, and thus, the above building site and the building were acquired under the above legal reasoning that the above building owner would not have any legal effect on the building site and the building owner's right to use the building. Therefore, if the building site and the building were acquired under the title of the above building, the above legal superficies cannot be established under the above agreement between Gangnam 2 and the above.
3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.
Justices Jeong Tae-tae (Presiding Justice)