B. In the case of the above "A", whether the successful bidder of the building acquires the superficies without registration

C. In the case of the above "B", whether the person who acquired the building from the successful bidder can request the registration of transfer of superficies by subrogation of the successful bidder

B. In the case of paragraph (a) above, barring special circumstances, such as where a successful bidder acquired the ownership of the building by enforcing a mortgage on the building, the superficies for the ownership of the building was sold under the conditions of sale such as the removal of the building after the successful bid, etc., the successful bidder shall be naturally acquired without registration pursuant to Article 187 of the Civil Act, and therefore, the successful bidder shall be deemed to be entitled to seek the implementation of the procedures for the registration of the transfer of superficies against the former person with superficies, and the lawsuit seeking

C. In the case of Article 100(2) of the Civil Act, it is reasonable to deem that the successful bidder, unless there are special circumstances, transferred the building to a third party, and that the superficies, which is the subordinate right, has also been transferred along with the building pursuant to the analogical application of Article 100(2) of the Civil Act, barring special circumstances. Thus, the transferee of the building can seek the implementation of the procedure for the registration of superficies transfer

The costs of appeal are assessed against the defendant.

The main text of Article 358 of the Civil Code provides that "the effect of a mortgage shall extend to the things attached to the mortgaged real estate and to the accessory property." This provision shall also apply to the subordinate rights to the mortgaged real estate by analogy, so that the effect of a mortgage on a building shall also extend to the superficies for the ownership of the building.

In addition, barring special circumstances, such as where a successful bidder acquired the ownership of a building by enforcing a mortgage on the building, the superficies for the ownership of the building was sold under the conditions of sale such as the removal of the building after the successful bid, etc., shall be naturally acquired by the successful bidder without registration (see, e.g., Supreme Court Decision 84Meu1578, 1579, Feb. 26, 1985) pursuant to Article 187 of the Civil Act. Therefore, the successful bidder shall be deemed to be entitled to seek the implementation of the procedures for the registration of the transfer of superficies against the former person with superficies, and the lawsuit seeking

In this case, it is reasonable to view that the successful bidder, in the event that the building is transferred to a third party, to transfer the superficies that are subordinate rights along with the building by analogical application of Article 100(2) of the Civil Act, barring any special circumstance, barring any special circumstance, the transferee of the building can seek the implementation of the procedure for the transfer registration of superficies to the former superficiary in subrogation of the successful bidder in order to preserve the right to claim the transfer registration of superficies (see, e.g., Supreme Court Decision 67Da1831, Nov. 28, 196; Supreme Court Decision 8Da1538, May 9, 1989

However, according to the judgment of the court below, at around March 2, 1977, 26 persons including Nonparty 1, etc., who are the owners of the site of this case, were to construct a sub-story building on the ground of this case, to set up a superficies on which the 2 and 3th floor building may be constructed on the above sub-story building as part of the construction cost. Around May 1980, the defendant and Nonparty 3, who are the husband of this case, purchased the above right from Nonparty 2 and completed the registration of creation of superficies on May 15, 1980 with the purpose of owning the building and 50 years with the duration of 50 years under the name of the defendant. At that time, the above sub-story building extended the 2 and 3th floor building to the above sub-story building and completed the registration of ownership transfer on June 22, 1983, the building established by the mortgagee of this case, which acquired the ownership of this case from the defendant 24 May 24, 1987.

Thus, the superficies of this case is established by the defendant to own the building of this case and is attached to the building of this case. Therefore, unless there are other special circumstances, the above non-party 4 who acquired the building of this case by the execution of the right to collateral security established on the building of this case shall be deemed to have acquired the superficies on the basis of the validity of the above right to collateral security. The plaintiffs who acquired the building of this case from the above non-party 4 can seek the execution of the procedure for transfer of superficies by subrogation of the above non-party

The court below erred in finding that the above non-party 4 acquired only the right to claim the registration of transfer of superficies of this case due to the above successful bid, but the conclusion of accepting the plaintiffs' claim for the execution of the above procedure for the registration of transfer of superficies of this case is justified, and there is no error of law by misunderstanding the legal principles of the right of subrogation

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 Yong-ju (Presiding Justice)