In a case where a building exists on the land at the time when a mortgage was created on the land, and both were owned by the same person, and where the land was subsequently transferred to a third party before the land was awarded a successful tender due to the exercise of the mortgage, whether the third party who acquired the building acquires legal superficies (affirmative)

In a case where a building exists on the land at the time when a mortgage was created on the land and both were owned by the same owner but the land was thereafter owned by a third party before the land was awarded a successful bid due to the execution of the mortgage, the purport of the law recognizing statutory superficies prescribed in Article 366 of the Civil Act is based on the public interest reasons to prevent social and economic losses, such as removal of the building, in a case where the land and the building on the land belong to each other's ownership due to an auction of mortgaged property, and the mortgagee anticipated the burden of statutory superficies at the time of the mortgage creation, and in a case where the mortgagee at the time of the mortgage creation is maintained at a minimum when the value of the mortgage at the time of the mortgage is exercised, even if the statutory superficies is recognized in such a case, the mortgagee or the mortgagee does not incur any unexpected damage to the building, while the third party who acquired the building would not obtain statutory superficies prescribed in Article 366 of the Civil Act if the statutory superficies is not recognized.

Article 366 of the Civil Act

Supreme Court Decision 92Da2030 Decided June 25, 1993 (Gong1993Ha, 2098), Supreme Court Decision 94Da5458 Decided November 22, 1994 (Gong1995Sang, 62) 95Ma1262 Decided December 11, 1995 (Gong196Sang, 348)

Plaintiff (Law Firm Taesung, Attorneys Kim Dong-ho et al., Counsel for the plaintiff-appellant)

Defendant

Chuncheon District Court Decision 99Na1936 delivered on August 13, 1999

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

We examine the grounds of appeal.

1. In a case where a building on the ground exists in the land at the time of establishing a mortgage on the land and both were owned by the same owner and thereafter the land was transferred to a third party before the land was awarded due to the execution of the mortgage, the purport of the law recognizing statutory superficies under Article 366 of the Civil Act is based on the public interest reasons for preventing social and economic losses, such as removal of the building, in a case where the land and the building on the ground belong to each other's ownership due to an auction of the mortgaged property (see Supreme Court Decision 65Da2587, Sept. 6, 196). The mortgagee anticipated the burden of statutory superficies at the time of the mortgage, and the mortgagee at the time of the mortgage, even if the mortgage is exercised, if the legal superficies is recognized, the mortgagee or the mortgagee does not incur any unexpected damage to the mortgagee even if the legal superficies is not recognized, in light of the fact that the third party who acquired the building should remove the building, if so, it is reasonable to deem the above third party to acquire the statutory superficies under Article 366 of the Civil Act.

2. According to the reasoning of the judgment below and the records, the land of this case and the building of this case, which are the land of this case, were owned by the non-party 2 at the time when the establishment registration of the right to collateral security of this case was completed under the name of the non-party 1 on July 4, 1995 (the land was registered on November 15, 1982; the building was registered under the name of the non-party 2 on March 13, 1984; the ownership transfer registration was made under the name of the non-party 2 on June 3, 1997 upon the application of the non-party 1, who is the right to collateral security, to the land of this case. On November 19, 197, the plaintiff was awarded a successful bid and paid the price to the plaintiff on November 23, 1997; the non-party 2 acquired the right to collateral security of this case in the name of the defendant on October 14, 1997.

The judgment of the court below to the above purport is just, and there is no error in the misapprehension of legal principles as to legal superficies, priority of real rights, effect of seizure and effect of deletion of auction as otherwise alleged in the ground of appeal.

The ground of appeal is without merit.

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 on the bench.

Justices Jack-dam (Presiding Justice)