2. 피고 2는 원고에게 서울 중구 남산도 1가 (지번 1 생략) 대 83평 3홉내의 별지 제1도면표시 ㄱ, 16, ㄴ, ㄷ, ㄹ, ㅁ, ㄱ의 각 점을 순차로 연결한 선내의 ㉱, ㉳ 부분 41평중에서, 별지 제2도면표시 1, 2, 3, 4, 5, 6, 1의 각 점을 순차로 연결한 선내의 ㉮, ㉯ 부분(평면적 56.7평방미터)의 수직하의 지하토지중 위 지하부분에 축조된 세멘벽돌조 스라브즙 지하실 공장1동 건평 56.7평방미터(17평 2홉)의 천정외벽을 상부로, 바닥외벽을 하부로 한 내부의 토지부분과, 위 제2도면표시 9, 10, 7, 8, 9의 각 점을 순차로 연결한 선내의 ㉰ 부분을 제외한 나머지 대지를 인도하라.

3. The plaintiff's remaining appeal is dismissed.

4. Of the costs of appeal, the costs of appeal incurred between the plaintiff and the defendant 1 are assessed against the plaintiff, and the costs of appeal incurred between the plaintiff and the defendant 2 are assessed against the plaintiff 2, and the remaining one is assessed against the plaintiff 2, and the plaintiff 1 is assessed against the plaintiff 2.

5. The above paragraph 2 can be provisionally executed.

원고에게 피고 1은 서울 중구 남산동 1가 (지번 1 생략) 지하 세멘벽돌조 스라브즙 지하실 공장 1동 건평 17평 2홉에서 퇴거하고, 피고 2는 위 같은 지하실을 철거하고, 서울 중구 남산동 1가 (지번 1 생략) 대 82평 3홉중 별지 제1도면표시 ㄱ, 16, ㄴ, ㄷ, ㄹ, ㅁ, ㄱ의 각 점을 순차로 연결한 선내의 ㉱, ㉳부분 41평을 인도하라.

The costs of lawsuit shall be borne by the defendants in both the first and second instances, and a provisional execution is declared.

The Defendants, based on statutory superficies 41 square meters above, cannot respond to the Plaintiff’s claim. Accordingly, according to the reasoning of the judgment below, the lower court held that the above portion of the land was owned by the Nonparty 2 and the above portion of the land owned by the Nonparty 1 and the above portion of the land owned by the Nonparty 2, which was owned by the Nonparty 1 and the above portion of the land owned by the Nonparty 2, and the lower court’s conclusion that the lower court, based on the reasoning of the judgment of the lower court, did not err by misapprehending the legal principles as to the above portion of the land owned by the Defendant 1 and the lower court’s reasoning that the lower court did not err by misapprehending the legal principles as to the above portion of the land owned by the Nonparty 2 and the lower court’s conclusion that the lower court did not err by misapprehending the legal principles as to the above portion of the land owned by the Nonparty 2 and the lower court’s conclusion that the lower court did not err by misapprehending the legal principles as to the above portion of the land owned by the Defendant 2 and the lower judgment.

피고 2는 그가 소외인으로부터 이전받은 법정지상권은 이 사건 대지중 앞에 본 41평(별지 제1도면표시 ㄱ, 16, ㄴ, ㄷ, ㄹ, ㅁ, ㄱ의 각 점을 순차로 연결한 선내의 ㉱,㉳부분)의 지표 및 그 상ㆍ하부분까지 미치는 것이라는 취지로 주장하나 위 41평의 지표 및 그 상ㆍ하부분 토지중 앞에서 인정한 지하토지부분 및 통로로 쓸 토지부분을 제외한 나머지 토지부분도 위 지하실을 유지ㆍ사용하는데 일반적, 객관적으로 필요한 것임을 인정할 만한 사유에 대한 아무런 주장ㆍ입증이 없으므로 피고의 법정지상권 주장은 위 인정의 지하토지부분에 관한 법정지상권을 주장하는 범위내에서만 이유있다 할 것이다.

The plaintiff argues to the effect that the above underground room is not used as a boiler room of the building listed in the annexed Table (2) owned by the defendant 2, but as it is used as a warehouse, the plaintiff is not only lost the accessory character at the time of the successful bid of the land of this case, but also a building with independent economic value, and it is not a building with independent economic value. However, as seen above, as long as the above underground room is not a simple structure, but also a building with economic value as a building by being used as a warehouse or a factory, the creation of legal superficies for maintaining and using the above underground room is natural. Therefore, the issue of whether the above underground room is an accessory to the building owned by the defendant 2 is not affected by the defendant 2's acquisition of legal superficies of the above recognition (the issue is whether the above underground room is recognized as an accessory and it is legitimate to see it as a legitimate issue). Therefore, the above argument by the plaintiff is groundless.

In addition, Defendant 2’s exercise of statutory superficies causes enormous damages due to the restriction on the use of the above ground room land owned by the Plaintiff, and therefore, it is an abuse of rights. However, the statutory superficies system was owned by the same person for specific reasons such as auction, etc., and if the owner changes due to a specific reason, the landowner’s exercise of ownership is a system that is specifically recognized by the Act within the minimum extent necessary to impose restrictions on the landowner’s exercise of ownership in order to prevent disadvantages and socioeconomic disadvantages to the building owner caused by the removal of the above ground building due to the removal of the landowner’s exercise of ownership. Therefore, Defendant 2 cannot be said to have abused the Plaintiff’s disadvantage due to exercising the above statutory superficies. Therefore, the Plaintiff’s above assertion is groundless.

Therefore, the possession of the above 41th among the above site of this case is lawful only for the possession of the above recognition's underground room and the part to be provided to the above passage. The possession of the above above underground room of defendant 1 is illegal. The possession of the above underground room of defendant 1 is legitimate as it is based on the lawful right of possession against the above above underground room of defendant 2. Thus, the plaintiff's claim of this case of this case is justified only to the extent of defendant 2's claim against the above defendant 2 for the delivery of the remaining part of the land except for the above recognition's land subject to legal superficies of 41th, the above recognition's claim of this case is justified. The plaintiff's claim against the defendant 2 for the removal of underground room and the claim against the defendant 1 against the above defendant 2 is dismissed. The plaintiff's appeal against the defendant 2 is dismissed in accordance with Article 9 of the Civil Procedure Act's decision of the court below's judgment and the decision of the court below against the defendant 9 of this case's appeal is without merit.

Judges Kim Jong-ho (Presiding Judge) and Kim Jong-ro, Kim Jong-ho