Whether a waiver of legal superficies under customary law is made when a building owner entered into a land lease agreement between the landowner and the landowner for the purpose of owning the building (affirmative)

Where only one of the buildings constructed on the land owned by the same person and on the land owned by the same person becomes disposed of in the other part and becomes different from the owner of the land and building, the statutory superficies under customary law shall be established. However, if the owner of the building has entered into a land lease agreement with the landowner for the purpose of owning the building, it is reasonable to deem that he/she has waived the statutory

Article 279 of the Civil Act

Supreme Court Decision 79Da572 delivered on June 5, 1979 (Gong1979, 1205) 80Da2243 delivered on July 7, 1981 (Gong1981, 14155) 91Da1912 delivered on May 14, 1991 (Gong191, 1627)

Plaintiff

Defendant

Msan District Court Decision 90Na1940 delivered on December 17, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

(The grounds of appeal on the appellate brief not timely filed are examined to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the first and third grounds for appeal

The court below acknowledged that the plaintiff and the defendant agreed on the rent for the purpose of owning a building on the site of this case owned by the plaintiff and formed a lease relationship without a fixed deadline, and the lease was terminated by the plaintiff's notice of termination, and accepted the plaintiff's claim seeking delivery of the building of this case and the site of this case purchased by the defendant's exercise of the defendant's right to demand purchase. If the court below reviewed the relevant evidence conducted by comparison with records, it can be justified in the judgment of the court below as above. It did not err in the misapprehension of the rules of evidence or by misapprehending the legal principles as to the principle of good faith and abuse of rights, without making proper deliberation as to the process of this case's site of this case.

There is no reason to discuss this issue.

2. On the second ground for appeal

If only one of the lands owned by the same person and the buildings constructed on the land and the building owned by the same person becomes the owner of the land and the building, the legal superficies under customary law shall be established as in the theory of lawsuit. However, if the owner of the building concludes a land lease contract with the landowner for the purpose of owning the building, it is reasonable to view that the owner of the building waives the legal superficies under customary law (see Supreme Court Decision 67Da2007 delivered on January 31, 1968; Supreme Court Decision 79Da572 delivered on June 5, 197; Supreme Court Decision 91Da1912 delivered on May 14, 1991; Supreme Court Decision 91Da1912 delivered on the premise above, the court below rejected the claim that the Plaintiff and the Defendant acquired the legal superficies under customary law, and there is no error in the misapprehension of legal principles as to the legal superficies under customary law.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)