Plaintiff

Defendant 1 and one other (Law Firm Shin & Yang, Attorneys Song-chul et al., Counsel for the defendant-appellant)

August 31, 2012

Suwon District Court Decision 2011No39758 Decided February 17, 2012

1. Revocation of the first instance judgment.

2. The plaintiff's claims against the defendants are all dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Plaintiff: (a) Defendant 1, in order to successively connect each point of (a) part of the building on the 1st floor, 87.74 square meters and each point of (b) the 2nd 32.8 square meters and 32.8 square meters of the 2nd tier of the building (hereinafter the above building) connected each point of (a) the 1st 87.74 square meters and the 5,6,7,8,9,10,11,12, and 5 of the same drawings among the buildings on the 2nd lub roof of the 1,257 square meters and the 1,2,3,4, and 100 square meters of the 2nd 32.8 square meters of the above building (hereinafter the above building is referred to as the “instant building”); (b) Defendant 2 removed the parts of the above (a) and (b) from

2. Purport of appeal

The same shall apply to the order.

1. Facts recognized;

A. On September 18, 200, Defendant 2 completed the registration of ownership transfer on the land of this case, which was based on the sale on August 16, 2000 as to the land of this case (hereinafter “the land of this case”). However, on November 24, 2006, the voluntary auction procedure for the land of this case, which was commenced upon the Nonparty’s application (Dayang District Court Decision 2006Ma2790, Jun. 1, 2008), the Plaintiff purchased the land of this case and completed the registration of ownership transfer in its name on February 1, 2008.

B. At the time of the decision to commence the voluntary auction, the second floor structure of reinforced concrete building, which Defendant 2 was under construction, existed in the completion of the construction of the building, such as its main walls and columns, and Defendant 2 completed the construction of the building on the instant land after the Plaintiff acquired ownership of the instant land.

C. At present on the instant land, there are two-story buildings of reinforced concrete sloping roof (hereinafter “instant building”). Among them, the part on one floor is 87.74 square meters inboard (A) which connects each point of the items in the attached Table 1, 2, 3, 4, and 1, and the part on one floor is 87.74 square meters in sequence, and the part on two floors is 32.8 square meters inboard (B) which connects each point in the same map No. 5, 6, 7, 8, 9, 10, 11, 12, and 5 in sequence (hereinafter “instant building”).

D. After acquiring the ownership of the instant land, the Plaintiff filed a lawsuit against Defendant 2, the owner of the instant building, and Defendant 1, the possessor of the instant building, claiming the removal of the instant building, the delivery of the site, and the removal of the instant land. However, on December 4, 2008, the said lawsuit was pending on the premise that Defendant 2 acquired the statutory superficies under the customary law for the instant building between the Plaintiff and the Defendants on December 4, 2008, under the premise that Defendant 2 acquired the ownership of the instant land, Defendant 2 transferred KRW 300,000 per annum to the Plaintiff from December 2008 to the end of each month until the loss of the ownership of the instant building by Defendant 2, and the Plaintiff established a judicial compromise with the content that both the remainder of the claims against the Defendants.

E. After the conclusion of the compromise, Defendant 2 paid to the Plaintiff KRW 90,00,00 on November 26, 2010, KRW 300,000 on February 25, 2011, KRW 300,000 on March 29, 2011, KRW 300,000 on April 26, 201, KRW 300,00 on May 29, 201, KRW 300,00 on June 28, 2011, KRW 30,000 on July 30, 201, and KRW 300,00 on August 29, 201, respectively, but the agreement was delayed on September 26, 2011.

F. On October 12, 2011, the Plaintiff filed the instant lawsuit against the Defendants, and submitted a complaint to notify Defendant 2 that the said statutory superficies has ceased to exist due to Defendant 2’s payment of rent for more than two years. The duplicate of the instant complaint was served on the Defendants on October 24, 201.

G. Meanwhile, on October 2, 2011, Defendant 2 paid KRW 300,000 to the Plaintiff on September 2, 2011, and thereafter, Defendant 2 paid KRW 300,000 per month to the Plaintiff by August 29, 2012, which is close to the date of closing argument in the trial.

H. At present, Defendant 1 occupies the instant building.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 3 evidence, Eul 1 and 2 evidence (including provisional number), the purport of the whole pleadings

2. The plaintiff's assertion

Since the Plaintiff exercised the right to claim the extinguishment of superficies by serving a copy of the instant complaint on the grounds of delinquency in payment of rent for not less than two years by the Defendants, the statutory superficies on the instant land by Defendant 2 was extinguished. Therefore, Defendant 2 should remove each of the instant buildings and deliver the instant land, and Defendant 1 has the duty to withdraw from the instant building.

3. Determination

Article 287 of the Civil Act provides that "if a superficies does not pay rent for not less than two years, the person who has created the superficies may claim termination of the superficies." In light of the meaning of the language thereof and the fact that it is difficult to deem that any change in the real right due to the claim for extinguishment of superficies takes effect without being registered pursuant to Article 186 of the Civil Act, the claim for extinguishment of superficies shall be deemed a claim on the basis of an obligatory basis. Article 10 (1) 1 of the Commercial Building Lease Protection Act provides that "Where a lessee has failed to pay rent for not less than two years, the rent shall be equal to the rent for not less than three years," and Article 287 of the Civil Act provides that "if a lessee has failed to pay rent for not less than two years, it shall not be deemed that a delay in payment of rent for not less than two years has been extinguished at the time of the exercise of the superficies right." In light of the fact that Article 287 of the Civil Act provides that "if a delay in payment of rent for not less than two years is not more than two years, the exercise of the superficies."

In light of the above legal principles, it is difficult to find that the Plaintiff’s expression of intent to claim the extinguishment of superficies No. 3 solely on the basis of the Plaintiff’s assertion that he/she had reached Defendant 2 at the time of October 24, 201, and there is no other evidence to acknowledge otherwise. Rather, according to each of the evidence No. 3, No. 1, and No. 2, Defendant 2 did not pay the rent for two years (24 months) as of September 26, 201, and Defendant 2 did not pay the rent for two years (24 months). However, on October 2, 2011, the fact that the Plaintiff’s expression of intent to claim the extinguishment of superficies was resolved by paying the rent for two years or more by the payment of the rent for the rent on September 2, 2011, and the fact that only the payment of the rent for two years or more to the part of the closing of argument for the first instance trial is recognized.

Therefore, the plaintiff's exercise of the right to claim extinguishment of superficies is not effective, and eventually, the plaintiff's above assertion against the defendants is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendants shall be dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be accepted by the defendants, and all of the claims of this case against the defendants shall be dismissed. It is so decided as per Disposition.

[Attachment]

Judges Lee Jae-hee (Presiding Judge)

(1) As seen earlier, until August 201, Defendant 2 paid KRW 3 million to the Plaintiff (i.e., KRW 900,000 + KRW 300,000 + KRW 300,000 on February 25, 2011 + KRW 300,000 on April 26, 201 + KRW 300,000 + KRW 300,000 on May 30, 201 + KRW 300,000 + KRW 300,000 on June 30, 201 + KRW 200,000 on July 28, 201 + KRW 300,000 on August 39, 201). The Defendant 200,000 for each of the above settlement, which was 300,000,0000 won on March 29, 201).