1. The owner of a real estate acquires the ownership of an article attached to the real estate, but it is not attached by another person's title (Article 256 of the Civil Act). Thus, the tree planted on the land based on the right to use the land for use, which is not in conformity with the land. Thus, even if the land was purchased by auction after the planting of trees, the purchaser does not acquire the ownership of the above ground trees (see Supreme Court Order 89Meu21095, Jan. 23, 1990, etc.).

2. 원심판결 이유에 의하면, 원심은 이 사건 수목의 소유권이 피고(반소원고, 이하 ‘피고’라고 한다)에게 있다는 확인을 구하는 이 사건 반소청구에 대하여, 피고의 주장에 의하더라도 피고가 이 사건 수목에 팻말을 걸어두는 등 명인방법을 취한 것은 이 사건 경매가 진행 중인 때로서 이 사건 토지에 마쳐진 각 근저당권설정등기 시점보다 후임이 명백하므로, 위 각 근저당권의 효력이 이 사건 수목에 미친다고 보아야 하고, 따라서 원고(반소피고, 이하 ‘원고’라고 한다)는 이 사건 경매에서 이 사건 토지와 함께 이 사건 수목의 소유권을 취득하였다고 볼 것이라는 이유로, 그 청구를 배척하였다.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The reasoning of the lower judgment and the record reveal the following.

1) The instant land was owned by the Defendant Nonparty 2, who was the purchaser through the auction procedure, before the ownership is transferred to the Plaintiff.

2) The Defendant is the owner of each land and building adjacent to the instant land, which is operating the ○○ Stop from around 1985, as the owner of the land and the building located on the instant land from around 1985. The Defendant appears to have occupied and used the instant land as facilities for the said rest area, and the possession and use of the instant land mainly appears to have been the Defendant.

3) According to the appraisal report of the auction case on the land of this case, the land of this case is composed of a total of 200 trees with a considerable size of about 80 weeks, such as skum skum skum skum skum skum skum skum skum skum skum skumum skum

4) On March 29, 2010, the Defendant issued a “a certificate of confirmation of the production of pine trees” consisting of the said multi-agent ( Address 4 omitted), the quantity of which is 37glus, and the modification area in Sungnam-si ( Address 5 omitted) in Sungnam-si. According to this, it can be found indirectly that the Defendant, in addition to the operation of a rest area, sold trees by planting and selling trees together.

5) Of the instant land, the land where the trees of this case are planted is three parcels above ( Address 6 omitted), ( Address 7 omitted), and ( Address 8 omitted). Each land category ( Address 6 omitted) is a river, ( Address 7 omitted), and ( Address 8 omitted) and ( Address 8 omitted), notwithstanding the land category of each of the said land categories, it can be said that there are many trees artificially planted.

B. Meanwhile, since the first instance trial, the Defendant consistently asserted that the Defendant occupied and used the instant land with the consent of Nonparty 2 to use the instant land by planting and managing the trees of this case. This may be deemed to be detrimental to the Defendant’s assertion that the ownership of the instant land belongs to himself/herself, as it planted trees on the instant land by the right to use the instant land, based on the right to use the land, and in light of the aforementioned legal principles, there is room to deem that the instant trees were planted by the Defendant on the instant land by the title and were owned by the Defendant and did not comply with the instant land.

C. Therefore, the lower court rejected the instant counterclaim on the grounds stated in its reasoning without sufficiently examining the Defendant’s assertion that the Defendant’s assertion constitutes an exception to conformity, i.e., the proviso to Article 256 of the Civil Act, and whether the trees of this case were planted based on the Defendant’s right to loan the use of the instant land. In so doing, the lower court erred by misapprehending the legal doctrine on conformity with the Civil Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit

4. The part concerning the counterclaim among the judgment below by the assent of all participating Justices is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition.

Justices Kim Shin (Presiding Justice)