[가건물철거등(본소)·소유권이전등기말소(반소)][집14(2)민,022]
After a site is transferred for security, where the debtor constructs a building on the site;
Even if the debtor obtained the consent of the creditor when the debtor constructed a building on the site after the site was transferred for security, it cannot be deemed that the debtor acquired a superficies or a real right similar to superficies according to custom on the site.
Article 366 of the Civil Act
Plaintiff
Defendant (Attorney Park Young-young, Counsel for the defendant-appellant)
Seoul High Court Decision 65Na719, 720 decided February 10, 1966
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The defendant Park Young-young's ground of appeal is examined.
According to the facts duly established by the court below, the defendant, as the purport of the transfer for security, completed the registration of ownership transfer to the non-party, but thereafter, he was at issue in this case with the consent of the non-party, and the non-party thereafter sold the above site to the plaintiff and then the transfer of ownership was passed in the name of the plaintiff at present.
In the above case, it is necessary to examine whether the defendant can regard the above building on his own land at the time of the above time.
In the case of transfer for security, the secured party shall acquire ownership of the collateral from the debtor, but it is merely subject to the restriction on claims by the purpose of the collateral. Therefore, the debtor cannot assert that the ownership of the site, which is the collateral, exists on his own, as well as in relation to the plaintiff who is a third party in this case, the defendant cannot assert that the above site was owned by himself during the period of the transfer for security.
Therefore, the defendant did not assert the building on his own land as to whether it is, and the non-party's land should be regarded as the non-party's land. Since part of the argument is premised on the fact that the defendant's building on his own land is not the building on his own land, it cannot be accepted.
In addition, it cannot be said that the defendant acquired a real right on the above site by custom or a real right similar to superficies on September 27, 1960 on the ground that the defendant was unable to obtain the consent of the non-party, and the Supreme Court decision on September 27, 1960 on the above site is not appropriate.
The facts stated in subparagraph 4 above cannot affect the conclusion of the court below.
Therefore, this appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party.
This decision is consistent with the opinions of the involved judges.
The judges of the Supreme Court, the two judges of the Supreme Court (Presiding Judge)