[건물철거등][집19(1)민,028]
In customary superficies, the owner of land or a third party who acquired the ownership of the land at the time of the acquisition of the superficies by the acquisition of the real right under the customary law may claim the superficies without registration: Provided, That the superficies cannot be disposed of unless the superficiary has registered the superficies.
Since superficies under customary law are the acquisition of real right to real estate under common law, a landowner at the time of the acquisition thereof or a third party who acquired the ownership of the land can claim the superficies without registration, but it cannot be disposed of unless the superficies is registered.
Article 1 of the Civil Act, Article 279 of the Civil Act
65Da1222 delivered on September 23, 1965
Plaintiff
Defendant
Daejeon District Court Decision 70Na177 delivered on October 28, 1970
The part of the original judgment against the defendant shall be reversed, and the case concerning this part shall be remanded to Daejeon District Court Panel Division.
The defendant's attorney's grounds of appeal are examined.
The judgment of the court below rejected the defendant's defense on the legal superficies. The defendant was originally owned by the deceased non-party because the plaintiff acquired ownership before the above non-party, and only the building acquired ownership from the above non-party since the defendant purchased it. The defendant acquired the legal superficies under customary law on the land of this case. However, even if the defendant acquired the legal superficies under customary law on the land of this case, even if he acquired the legal superficies under customary law on the land of this case, the defendant cannot set up against the plaintiff who acquired the ownership of the land of this case before the ownership of the land of this case without the registration of the superficies. Thus, the defendant's defense on this point cannot be accepted.
However, unless there is any circumstance to remove a building site or a building among the sites and buildings owned by one person, and there is no special agreement thereon, the site owner shall be deemed to have established a customary superficies against the owner of the building. This superficies does not require the acquisition of any real right due to any juristic act, but it takes effect without registering it as acquisition of any real right due to any customary law. Under this custom, superficies may be asserted without registration against the owner of the land at the time when they are acquired by the validity as a real right or against a third party who acquired the ownership from that time. However, if a person holding customary superficies fails to register it, it is impossible to dispose of the superficies unless it is registered (see Supreme Court Decision 65Da1222, Sept. 23, 1965). The court below reversed the building of this case from the non-party, the owner of which was the non-party, to whom the building was constructed at the time of the purchase of the building of this case, and it is reasonable to conclude that the defendant, as alleged in the judgment below, did not err by the judgment against the non-party.
Supreme Court Judge Hongnam-gu (Presiding Judge) Kim Young-chul Kim Young-young