Main Issues

Superficies and registrations acquired by customary laws prior to the enforcement of the Civil Act.

Summary of Judgment

852. The superficies acquired under the customary law before this Act enters into force shall not require registration, and may thus claim to a third person the right as a superficiary.

[Reference Provisions]

Article 2 of the Civil Code, Article 187 of the Civil Code

Plaintiff-Appellant

Kim Il-young

Defendant-Appellee

Same-sex Assistance Foundation for the Incorporated Foundation

Judgment of the lower court

Daegu High Court Decision 62Na45 delivered on September 27, 1962

Text

The appeal is dismissed.

Reasons

Except as otherwise provided in this Act, the main sentence of Article 2 of the Addenda of the Civil Code provides that the provisions of this Act shall also apply to the matters before the enforcement date of this Act, and therefore, Article 187 of the Civil Code shall not apply to the superficies acquired under the customary law. Therefore, the superficies acquired under the customary law prior to the enforcement of the Civil Code shall not require registration, and shall hold the effect thereof, and may claim for the right of superficies against the third party as superficies. According to the original judgment on August 24, 1957, the defendant acquired superficies under the customary law as to the site, the owner of which was the largest net salary, and the plaintiff acquired the ownership of the site in this case due to the auction by compulsory auction on December 30, 1959, so the defendant can claim that the superficies under the customary law as to the site in this case was acquired on the site in this case as the reason why the original judgment rejected the plaintiff's claim for removal of the building, and the defendant shall not have any objection to the dissenting opinion in the original judgment.