[지상권설정등기말소][집14(3)민,122]
Ownership of superficies and natural standing timber;
The court below concluded that the date on which the defendant lawfully exercised the right to purchase standing timber, which is the subject matter of the ground, against the plaintiff, is as of March 26, 1965 and the time when the price of the standing timber was calculated is as of March 26, 1965, and that there is no price increase among them, and ordered the plaintiff to pay this price by appraising the market price as of February 19, 1966, on the ground that there is no price increase between the above two hours, but the fact that the price of the standing timber does not change between the two hours is without any ground.
Article 265 of the Gu Residents Act, Article 279 of the Civil Act
[Defendant-Appellee] Confucian School Foundation, Jeollabuk-do (Attorney Park Ha-young, Counsel for defendant-appellee)
Jeollabuk-do (Attorney Seo-gu et al., Counsel for the plaintiff-appellant)
Jeonju District Court Decision 65Na339 delivered on April 15, 1966
(1) The part of the judgment below against the plaintiff is reversed, and that part is remanded to the Jeonju District Court Panel Division.
(2) The defendant's appeal is dismissed.
(3) The costs of appeal by the defendant are assessed against the defendant.
(1) First, as to the Plaintiff’s appeal,
The grounds of appeal by the plaintiff's agent are examined.
(A) On the first ground for appeal
According to Article 265 of the Gu Residents Act, superficies was the right to use the land in order to own a structure or bamboo on the remaining land.
If so, even though the purpose of superficies is "the ownership of bamboo trees" as stated on some forests and fields at issue in this case (the original trial is called "the forest and field No. 1), it is difficult to view that the purport of the superficies is to only the ownership of bamboo trees as it refers to the opinion.
Next, the lower court, based on the theory of conformity, considers that the Defendant, a person holding superficies, acquired ownership of the standing timber planted in the erosion control office on the above forest land. However, if the above erosion control office was planted by the Erosion Control Work Act, this standing timber is attached to the title of the erosion control office, so the theory of conformity cannot be applied.
In addition, within the duration of superficies, it is reasonable to view that naturally grow on the original forest land as belonging to a superficiary for the purpose of owning bamboo and trees, unless there are special circumstances.
If so, although the court below erred in determining that the erosion control office was planted, it is reasonable to determine that the court below imposed on the natural standing timber.
The following arguments are that there is no rent for the superficies, so it is an attack against the superficiary who has no right to demand purchase, but can not be employed.
In this regard, this paper will be the reason why it is reasonable.
(B) On the second ground of appeal:
The lower court recognized the Plaintiff as of March 26, 1965 the day on which the right to purchase standing timber, which is the subject matter of the instant case, was lawfully exercised, and concluded that the calculation of the price of the said standing timber was at present on March 26, 1965, and on the other hand, ordered the Plaintiff to pay this price by appraising the market price as of February 19, 1966 by appraising the current market price as of February 19, 1966, when the price of the said standing timber was not increased.
However, the fact that there is no change in the price of standing timber between two times is a theory without any basis. Therefore, it is reasonable to present this issue in this point without making any decision on other arguments.
Accordingly, the part of the judgment of the court below against the plaintiff shall be reversed, and that part shall be remanded to the Jeonju District Court Panel Division.
(2) As to the Defendant’s appeal:
We examine the grounds of appeal by the defendant's agent, the defendant's ward, and the defendant.
(A) As to the grounds of appeal Nos. 1 and the grounds of appeal by literature Cinin, although in the instant case, it is assumed that the superficiary continued to grow trees in the rear of the expiration of the duration of the superficies, and that the Plaintiff did not raise any objection to such fact, such fact alone cannot be deemed as having led to an implied warning of the contract to establish superficies between the original Defendant.
The decision of the court below as the same opinion as a party member is just, and there is no evidence to see that there was a misunderstanding of the legal principles as to implied concurrence of superficies contract, such as the expression of opinion.
(B) As to the second ground for appeal by a mosin:
According to the discussion, Article 269(1) of the Gu Residents Act provides that only the owner of the land shall provide the market price at the time when the superficies is extinguished, and the right to purchase the land shall be deemed to have the right to purchase the land from an economic point of view.
However, this issue is a theory that is not acceptable as an interpretation theory of the Gu residents' law, and therefore, this issue is groundless.
Accordingly, the defendant's appeal is dismissed as it is without merit. The costs of appeal are assessed against the defendant.
This decision is consistent with the opinions of the involved judges.
The judge of the Supreme Court (Presiding Judge) of the Republic of Korea shall have the authority to transfer a red net holiday.