건물등철거
1. The defendant remove the building in the attached list 2 to the plaintiff and deliver the land in the attached list 1 to the plaintiff.
2...
1. Facts of recognition;
A. A. On March 10, 2008, B Co., Ltd. (hereinafter “B”) completed the registration of ownership transfer with respect to the land listed in the [Attachment List 1 (hereinafter “instant land”). On July 24, 2008, the registration of ownership transfer with respect to the said land was completed on the basis of the maximum debt amount of KRW 13 billion, the debtor B, and the collateral security company D (hereinafter “mortgage”).
B. On August 1, 2018, the Plaintiff completed the registration of ownership transfer based on the sale of the instant land by voluntary auction.
(Cheongju District Court E, on the other hand, with respect to the land described in paragraph (1) of this case, only 2/3 shares, which are shares B, shall complete the registration of ownership transfer).
At present, there is a building listed in the attached Table 2 owned by B (hereinafter “instant building”). D.
B was declared bankrupt on June 29, 2016 by the Cheongju District Court 2016Hahap4, and C was appointed as a bankruptcy trustee.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 11, purport of the whole pleadings
2. According to the facts acknowledged prior to the determination of the cause of the claim, the Plaintiff, who is the owner of the instant land and co-owner, exercises the right to claim the removal of interference based on ownership, the Defendant is obligated to remove the instant building and deliver the said land to the Plaintiff
3. Judgment on the defendant's defense
A. The gist of the Defendant’s assertion was that the instant building had already existed on the instant land at the time of the establishment of the right to collateral security, and thus, B, the bankrupt acquired legal superficies or customary statutory superficies under Article 366 of the Civil Act for the Plaintiff. Therefore, the Plaintiff’s claim cannot be complied with.
B. After establishing a mortgage on the land without a judgment, if the mortgager constructed a building above it, but due to auction in the auction procedure to exercise the security right, the land and the ground building are different from the owner.