[대지인도등][집29(1)민,171;공1981.6.1.(657) 13901]
In principle of trust and good faith, a landowner shall demand removal of a building against the owner of the building on the land who is in a position to acquire a customary statutory superficies
A is obligated to cancel the registration of transfer of ownership in the name of “A” with respect to “B” who was the owner of the above ground, and “B” cannot seek removal of the above building in light of the principle of good faith when “B” is in the position to acquire the legal superficies under customary law by making registration of cancellation.
Article 2(1) of the Civil Act
[Judgment of the court below]
Attorney Kang Shin-young, Counsel for the defendant-appellant
Gwangju District Court Decision 79Na164 delivered on October 2, 1980
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
The grounds of appeal by the Plaintiff’s attorney are examined.
According to the reasoning of the judgment of the court below, the court below recognized that the defendant constructed the building on the land purchased by the plaintiff after September 30, 1968, and borrowed money from the plaintiff to sell the building on the land as collateral to the plaintiff as the special agreement for repurchase, and subsequently completed the registration of the transfer of ownership as of August 3, 1971, and then filed a lawsuit against the plaintiff to pay the redemption price and interest interest and to demand the performance of the procedure for cancelling the registration of transfer of ownership as of July 27, 1978. The judgment in favor became final and conclusive, and the plaintiff purchased the land and completed the registration of transfer of ownership on April 23, 1973. Accordingly, since the land and the building were owned by the plaintiff, the defendant, the owner of the building, acquired the legal superficies under customary law on the land owned by the plaintiff.
In the event that land and a building on the ground belongs to the same person and the building becomes owned by the same person due to the act such as sale and purchase, the owner of the building shall obtain legal superficies under customary law unless there are special circumstances, and such theory is valid in cases where the debtor has completed the registration of ownership transfer in the form of selling only the building to the creditor in a special agreement for repurchase in order to secure the obligation due to a money loan for consumption, and the creditor has acquired all the ownership of the land and the building, and then the creditor has acquired all the ownership of the land and the building, it shall be applied in cases where he pays back the debt from the creditor and resells the building again, and then acquires the ownership of the building, it shall be the same as the above original decision. However, according to the records, the defendant did not have the judgment in favor of the plaintiff in the lawsuit for cancellation of ownership transfer, etc. as in the above original decision, and its registration has not yet been restored to the defendant, and thus, the defendant is not obligated to obtain the legal superficies under customary law as to the defendant's construction.
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 Justices.
Justices Kim Hong-chul (Presiding Justice)