[건물철거등청구사건][고집1983(민사편),247]
If a building is constructed with the consent of the former owner of the land, the gender of the statutory superficies under customary law (negative)
Even if a building was constructed on the ground with the consent of the former owner of the land, since the land and the building were owned by each other from the beginning, there is no room for the establishment of legal superficies under customary law recognized in cases where the land and the building belonging to the same owner are different from each other due to sale and purchase, etc.
Article 366 of the Civil Act
Seoul High Court Decision 79Da2000 decided July 8, 1980 (Weak II Article 366(1) of the Civil Code, Article 366(1) of the Civil Code, Article 366(2) of the Civil Code, Article 366(2) of the Civil Code, Article 366(2) of the Civil Code, Section 28B
Kim Hong-b
Lee Jin-jin
Daejeon District Court (82 Gohap17)
The appeal and counterclaim claim filed by the Defendant-Counterclaim Plaintiff are dismissed. The costs of appeal and counterclaim are assessed against the Defendant-Counterclaim Plaintiff.
Plaintiff (Counterclaim Defendant: hereinafter Plaintiff 2) is the principal lawsuit; Defendant (Counterclaim Plaintiff 2: hereinafter Defendant 2) is the Defendant’s (Counterclaim Plaintiff: hereinafter Defendant 1 omitted) removed, in order to the Plaintiff, the attached drawing indication (b) out of 1,567 square meters prior to Chungcheongnam-gun, the attached drawing indication among the 1,567 square meters at 486 square meters equal (number 2 omitted) and the same drawing indication (c) constructed on the ground of the same 486 square meters at 1, 1, 36 square meters in 1, 86 square meters in house, 1, 36 square meters in 1, and 35 square meters in 1,43 square meters in 1,43, 15, 15, 15, 31, 328, 329 and 41, 35 square meters in 1, 35 square meters in 25, 314, 327 and 41, 204.
The court costs are assessed against the defendant and a declaration of provisional execution. The defendant is a counterclaim, and the plaintiff pays 4,469,200 won to the defendant.
The court costs are assessed against the plaintiff.
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
Litigation costs are assessed against all of the plaintiff in the first and second instances.
According to the evidence No. 1 and No. 8 (each certified copy of the register), each entry of No. 1 and No. 8 (each certified copy of the register), which are not disputed in the formation, 2/3 of shares among the 1,567 square meters of (number 1 omitted) school-based (number 1 omitted) 1,567 square meters (hereinafter referred to as "land (number 1 omitted) and 486 square meters (hereinafter referred to as "land number 2 omitted) in the name of the plaintiff can be recognized. Thus, the plaintiff shall be presumed to be co-owners of the above land and owners of the above land.
First, if the plaintiff's main claim is examined, Eul evidence Nos. 1, 2, and 1, 2, without dispute over the establishment of the court below's establishment, and all the purport of arguments as a result of on-site verification and appraisal of the court below's decision, the defendant's entry as stated in the above (i), (ii), 3, 33, 14, 15'sE, 31, 30, 27, 28, 23, 31-1, 32, 34-1, 32, 31-1, 35'sE among the above building's land's site as stated in (v), 1, 86 square meters in 1, 1, 86 square meters in 1, 2, and 35-1, 35'E in 1, 35'E in 2, 35'E in 2, 31, 35'E in 2, 315'E in 4.
Since the defendant, around 1960, obtained the permission to use the land from the non-party 1, the former owner of the land, and constructed and used the above building on the above ground with the permission to use the land on the above ground, the above part of the building is alleged to have been acquired the legal superficies under customary law. Thus, even if the above building was constructed on the above ground with the consent of the former owner of the above land, such as the house building and the house house house house, even if the land and the building were owned by the former owner of the above land from the beginning, since the land and the building were owned by the former owner of each other, there is no room to establish the legal superficies under customary law recognized in cases where the owner of the land and the building, which were owned by the same person, are different from
In addition, since the market price of the above building is remarkably higher than that of the part occupied by the defendant among the above land, the plaintiff's claim that the defendant would remove the above building in order to take over the above land at low price is abuse of rights. Thus, according to the appraisal results of this appraisal by the court below, it can be recognized that the market price of the above building is 4,469,200 won compared to that of the above part owned by the defendant among the above land, the market price of the above building is 5,005,80 won, and the above part of the building is 4,469,200 won, and there is no other counter-proof. Thus, if the above circumstance exists, it is difficult to view that the plaintiff's benefit from the use of the above part occupied by the defendant as being delivered with the defendant's share of the building is remarkably smaller than the damage caused by the removal of the above building by the defendant, and therefore, the defendant's assertion of abuse of rights is
Therefore, in this case where there is no proof of the right to possess the above land differently, the defendant has the duty to remove each of the above buildings and deliver the occupied part to the co-owner or the plaintiff who is the owner of the above land (as a co-owner's preservation act with respect to the land).
Next, as to the defendant's counterclaim, the defendant acquired customary superficies by leasing the land from the Park Yong-deok, which is the owner of the above land, and building the above building on the ground, living for over twenty years, and completing registration of preservation of ownership. Since the plaintiff did not compensate for the above building and removed it, the plaintiff sought payment of KRW 4,469,200 corresponding to the market price of the building. Thus, there is no room for the defendant to establish customary statutory superficies as to the site of the above building. Since the above possession of the defendant constitutes illegal possession as seen earlier, the defendant's counterclaim claim on the premise that the above possession of the above building is legitimate is unnecessary to determine the above possession.
If so, the plaintiff's claim of the principal lawsuit is accepted as reasonable, and the defendant's counterclaim is dismissed as without merit, and the original judgment regarding the principal lawsuit is just in accordance with the above conclusion, and the defendant's appeal is unfair and dismissed, and the costs of appeal and the costs of counterclaim are assessed against the defendant who has lost. It is so decided as per Disposition.
Judges Kim-sung (Presiding Judge)