1. Based on its reasoning, the lower court rejected the Plaintiff’s claim for the registration of ownership transfer based on the above provisional registration on June 12, 1984, for the following reasons: (a) as Nonparty 2 and Nonparty 3 purchased the land owned by Nonparty 1 in common on September 20, 1978; (b) entrusted the ownership transfer to Nonparty 4 in trust; and (c) on the same day, registered the ownership transfer of Nonparty 4 in order to prevent the said Nonparty’s arbitrary disposal; (d) on the same day, Nonparty 2 and Nonparty 3’s declaration of intention to cancel the title trust; (e) the Plaintiff’s claim for the registration of ownership transfer based on the above provisional registration on June 12, 1984, for the acquisition of the above provisional superficies to Nonparty 4, which would have been contrary to the principle of trust and good faith, and (e) the Plaintiff’s claim for the registration of ownership transfer from Nonparty 2 and Nonparty 4, which would have been against the Plaintiff’s ownership transfer of the above land to Nonparty 16.

2. However, in a case where a customary superficies for the ownership of a building belongs to the same person, and the owner of the building becomes different by sale, etc., if the land and the building belongs to the same person. Thus, in this case, if the non-party 4 can be deemed to have acquired a customary superficies for the ownership of the building in original condition, it shall be deemed that the registration of ownership transfer of the land belongs to the ownership of the above non-party 4, who is the same person, before June 12, 1984, where the land and the building in original condition were completed in the non-party 2 and the non-party 3, the building in original condition, and the building in original condition, were owned by the non-party 4, the title truster and the non-party 4, who is the title truster, could not claim the ownership transfer registration of the land in the name of the non-party 2 and the non-party 3, who is the non-party 4, because the provisional registration of the right to claim ownership transfer was made in order to prevent voluntary disposal by the non-party 4, the title trustee.

The customary superficies established when the land and the ground buildings belong to the same owner respectively. In such a case, if there is no special condition such as the removal of a building between the parties, etc., the owner of the land shall be construed to have had an intention to establish a superficies to own the building at the time of original sale of the land. Thus, whether Nonparty 4 acquired a customary superficies to own the building at the time of original sale of the land in this case between the truster and the truster who restored the title of the land upon the termination of the title trust, the issue may be determined depending on whether the said Nonparty could assert that the land was owned by the owner while the said Nonparty was trusted by the trust of the title of the land in the name of the title, and it cannot be decided by the fact that the third party, other than the title truster, could have externally claimed the ownership of the land.

For reasons indicated in its holding, the court below erred by misapprehending the legal principles as to the requirements for acquisition of superficies under customary law, which affected the conclusion of the judgment, and it constitutes a violation of the law to reverse the judgment of the court below under Article 12 (2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings. Therefore, the appeal on this point is justified.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee B-soo (Presiding Justice)