If the legal superficies is to be transferred from the legal superficies to the superficies when the building is acquired, whether the owner of the land claims the removal of the building (negative)

A person who takes over a building from a building owner who acquired the legal superficies and wants to take over the legal superficies to take over the legal superficies can seek implementation of registration for creation and transfer of the superficies in sequence against the building owner and the former building owner in accordance with a creditor subrogation doctrine. As such, for a person who is in the position to acquire the legal superficies, a person who is obligated to seek removal, etc. of the building based on the ownership of the site against the right owner, who is obligated to take the procedure for creation registration, is against the right holder, and thus, cannot

Articles 2 and 366 of the Civil Act

Supreme Court Decision 84Meu131, 1132 Decided April 9, 1985

Plaintiff

Defendant

Suwon District Court Decision 85Na24 delivered on February 22, 1985

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below held that the land and the building of this case were owned by the non-party originally on the premise that the defendant acquired customary statutory superficies on the land of this case, and the non-party sold each of the above land to the plaintiff to the plaintiff and completed the registration of ownership transfer on the land of this case. However, the above building was registered only on the building ledger, and its owner was unregistered until now since the construction was completed, and according to the above facts acknowledged, if the above building did not complete the registration of ownership transfer in the future and did not acquire the legal superficies on the above building, it cannot be acquired directly on the above site. Although the above non-party, a legal owner of the above building, acquired customary statutory superficies on the above land, and the defendant acquired it from the above non-party based on the purchase of the building, the defendant cannot be asserted against the plaintiff, the owner of the above land, as long as the registration of ownership transfer was not completed in the future, and rejected the defendant's claim against the defendant for removal of the above building and the plaintiff's claim for delivery of the land.

However, if the above non-party acquired legal superficies on the above land as at the time of the original adjudication, the defendant can seek implementation of the registration of creation of superficies and the registration of transfer against the plaintiff and the above non-party in order according to the obligee's subrogation doctrine, and it is not permissible for the plaintiff to seek removal of the building and delivery of the land based on the land ownership (see Supreme Court Decision 84Da1131,132, Apr. 9, 1985). The records show that the non-party, who was the original owner of the land, asserted the establishment of legal superficies under customary law, has superficies for the building ownership, and that the plaintiff acquired the land from the above non-party, and thus it is unreasonable to claim this construction because it constitutes abuse of the right, and that the plaintiff's claim is not permissible under the principle of trust and good faith. The court below's assertion that the plaintiff's claim for the above construction of the land should not be asserted for the above reasons.

Therefore, the judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kang Jin-young (Presiding Justice)