[소유권이전등기,건물철거등][공1995.9.1.(999),2975]
A. Requirements for establishing legal superficies under customary law
B. Criteria for determining whether it is a solid building under Article 280(1)1 of the Civil Code
(c) Whether the legal superficies has effect on a building extended after the legal superficies established under the customary law;
(a) In order to establish legal superficies under customary law, one of the land and buildings must have been owned by the same person, if the land and the building on the ground were to belong to the same person’s ownership at the time of disposal, and there is no need to have been owned by the same person.
B. Whether a building is solid under Article 280(1)1 of the Civil Act ought to be determined by comprehensively taking account of physical and chemical external strength of the building, resistance to fire, or difficulty in dismantling a building.
C. With respect to land on which statutory superficies under customary law has been established, the land can be freely used unless the statutory superficies holder does not deviate from the scope necessary for the maintenance and use of the building. Thus, even if the ground building was extended after its establishment, so long as the building has been established and the legal superficies under customary law and is on the land on which the legal superficies holder has the right to occupy and use, it is not obligated to remove
(a)Article 279(b) of the Civil Code, Article 280(1)1;
A. (B) Supreme Court Decision 87Meu2404 delivered on April 12, 198 (Gong1988,839). Supreme Court Decision 70Da1454 delivered on September 29, 1970 (Gong1839 delivered on September 27, 198) (Gong198,1325) 94Da61731 delivered on April 28, 1995
Plaintiff (Counterclaim Defendant) 1 and six plaintiffs, Counsel for the plaintiff-appellant-appellee)
Defendant-Counterclaim Plaintiff (Attorney Kim Sang-hoon, Counsel for the defendant-Counterclaim plaintiff)
Daegu District Court Decision 94Na1874, 1881 delivered on January 18, 1995
The appeal is dismissed.
The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).
The grounds of appeal are examined.
1. On the first ground for appeal:
In order to establish legal superficies under customary law, one of the lands and buildings was owned by the same person at the time when the land and the building on the ground were disposed of (see Supreme Court Decision 70Da1454, Sept. 29, 1970).
According to the reasoning of the judgment below, the court below found that the building (hereinafter the building in this case) constructed on the 1,428 square meters of the attached drawing (A), part (c), 428 square meters of the judgment below among the 1,428 square meters of the land owned by the Defendant (Counterclaim Plaintiff), based on the evidence of the court below, was the ownership of the above non-party newly constructed with the consent of the Defendant. The above non-party purchased the above part (A) land from the Defendant on March 7, 1960 and registered co-ownership of the entire land on December 22, 1964. The court below rejected the above non-party's independent ownership of the above non-party in relation to the above part (A) land on the ground that the non-party purchased the above part (A) land again to the Defendant on January 20, 197, and there is no error in the law by misapprehending the legal principles on the non-party's land under the common law or the above part (A) on the non-party's land to be sold.
2. On the second ground for appeal:
The issue of whether a solid building is authorized under Article 280(1)1 of the Civil Act shall be determined by comprehensively taking into account the physical and chemical external power of the building, the low resistance to fire, or the difficulty of dismantling the building (see Supreme Court Decision 87Meu2404, Apr. 12, 198). According to the records, the court below determined that the building of this case is a building under Article 280(1)1 of the Civil Act, since it cannot be easily dismantled because the building of this case was built on a solid ground by cement block, and a rural building built on the roof with a flag or a stud, or a stud, with a substantial inner force for a considerable period of time, and it is reasonable to determine that the building of this case constitutes a building under Article 280(1)1 of the Civil Act. There is no error of law
3. On the third ground for appeal
With respect to land on which statutory superficies is established under customary law, the land can be freely used unless the statutory superficies holder does not deviate from the scope necessary for the maintenance and use of the building. Thus, even if the above part of the ground building was extended after the statutory superficies was established after the establishment of the statutory superficies, the court below held that the above building did not have a duty to remove the land as long as the legal superficies under common law is established and the above part of the above (A) is on the land with the right to occupy and use for the plaintiffs, and there is no error of law by misunderstanding the legal principles
4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by all participating Justices.
Justices Park Jong-ho (Presiding Justice)