[1] In a case where a building is being constructed on the ground by a landowner at the time of establishing a mortgage on land, the elements of the building to be recognized as a legal superficies

[2] Whether a landowner who trusted a title in the registry of a building to another person can acquire legal superficies under Article 366 of the Civil Code (negative)

[1] Legal superficies under Article 366 of the Civil Code is generated for the owner of a building when land and a building belonging to the same person becomes different from the two owners due to auction. In the event that a building was constructed on the ground by a landowner at the time when a mortgage was established on the land, construction has been developed to the extent that the size and type of the building could be anticipated to be an independent building in light of social norms even if it did not reach the degree that the building could be seen as an independent building in light of social norms. Since then, the statutory superficies under Article 366 of the Civil Code is established as independent real estate, such as the sale price at the auction procedure until the purchaser paid the purchase price, and the building satisfies the requirements for the building

[2] In a case where a title owned in the register of a building was entrusted to another person, the truster cannot assert that the building is owned by the third person, and therefore, the truster cannot acquire legal superficies on the premise that the building and the land, which are the land, are owned by the same person.

[1] Article 366 of the Civil Code / [2] Article 103 [title trust] and Article 366 of the Civil Code

[1] Supreme Court Decision 92Da7221 delivered on June 12, 1992 (Gong1992, 2137), Supreme Court Decision 2002Da21585 delivered on May 30, 2003, Supreme Court Decision 2002Da21592, 21608 delivered on May 30, 2003 (Gong2003Ha, 1428), Supreme Court Decision 2003Da26518 Delivered on September 23, 2003 / [2] Supreme Court Decision 74Da1935 Delivered on March 11, 1975 (Gong191, 197; 199Da17200 delivered on May 28, 1991; Supreme Court Decision 2003Da395399 delivered on May 39, 205 (Gong19759, 1939).

Plaintiff (Attorney Lee Jong-chul, Counsel for defendant-appellant)

Defendant (Attorney Lee In-hee, Counsel for defendant-appellant)

Seoul High Court Decision 2002Na5886 delivered on April 30, 2003

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

Legal superficies under Article 366 of the Civil Act are generated for the owner of a building when the land and the building owned by the same person come to be different from the one owner due to auction. In the event that a building was constructed on the ground by a landowner at the time when a mortgage was established with respect to the land, construction has been developed to the extent that the size and type of the building could be seen as an independent building in light of social concept even if it did not reach the degree that the building could be seen as an independent building. After that, at the auction procedure, the statutory superficies is established as independent real estate, such as a minimum pole, roof, and main wall until the purchaser paid the purchase price, which satisfies the requirements of the building (see Supreme Court Decisions 92Da721, Jun. 12, 1992; 2002Da21585, May 30, 2003; 2002Da21592, May 30, 2003; 2003Da36283, Feb. 3, 20168, 2006

According to the reasoning of the judgment below, the court below rejected the defendant's ground that, based on its adopted evidence, the plaintiff was awarded a successful bid for 126-14 square meters and 728.3 square meters (hereinafter "the land in this case") in Bupyeong-gu, Incheon, which is owned by the defendant in the course of voluntary auction of real estate, and completed the registration of ownership transfer on September 28, 2001, and the defendant, the non-party 1, and the deceased non-party 2 were jointly granted a construction permit on March 14, 192 to construct a golf range and a wedding hall on the land in this case, but started construction around that time, but completed the construction of the land, but completed the construction of the land destruction, the construction was suspended at the time of the construction, and the third party, including the defendant, had no obligation to remove the building in this case to the extent that the building in this case had already been acquired at the time of construction of the building in this case.

In light of the above legal principles and records, the structure of this case cannot be deemed as a building under construction where the size and type of the building can be expected at the time when the mortgage is established on the land, and it cannot be deemed that it satisfies the building requirements as an independent real estate, such as a minimum pole, roof, and main wall, from the auction procedure to the time the purchaser paid the sale price, and it cannot be deemed that it satisfies the building requirements. Therefore, the above recognition and judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to the establishment of legal superficies or misconception of facts due to the violation of the rules of evidence. The ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

The statutory superficies under Article 366 of the Civil Act is generated for the owner of a building when the land and the building on the ground owned by the same person belong to different owners from each other due to an auction. Thus, in the case where only the land and the building on the ground whose own land and the building on the ground were different owners transfer their ownership to others by auction, there is no room for the legal superficies under the above Article. In the case where the land and the building on the ground are trusted to others by auction, the truster cannot assert that the building is owned by the third person, and therefore, the legal superficies under the premise that the building and the land on the site are owned by the same person cannot be acquired (see Supreme Court Decision 93Da47318 delivered on May 23, 1995, etc.).

The lower court rejected the Defendant’s assertion that the instant land had a golf range building owned by Nonparty 3 at the time of the establishment of the first priority collective security right, and the instant structure was established to extend the building owned by Nonparty 3, and thus, statutory superficies is established at least within the scope of the old building owned by Nonparty 3, on the ground that there is insufficient evidence that there was a building owned by the said Nonparty 3 at the time of the establishment of the first priority collective security right on the instant land and September 24, 1996.

In light of the above legal principles and records, even if there was a building owned by the non-party 3 on the ground at the time of establishing a right to collateral security on the land of this case owned by the defendant, the land and the building on the ground shall not be deemed to belong to the ownership of the same person at the time of establishing a right to collateral security, and since the defendant did not have different from that of the above building even if he held a title trust with the non-party 3, it is not justified in itself. Accordingly, the court below's decision is somewhat insufficient, but the above conclusion is not erroneous, and contrary to the allegations in the grounds of appeal, there is no error of law that affected the conclusion of the judgment

3. Conclusion

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-dam (Presiding Justice)