In a case where a party to the creation of a security right, such as a right to collateral security, has created superficies in the future of the obligee to prevent the reduction of the value of collateral due to the creation of a right to use after rent on the land subject to the right to collateral security, whether the superficies also cease to exist if the secured claim has been repaid or expired

If the parties to the creation of a security right, such as a right to collateral security, have established the right to use the right after rent, or a building or structure is constructed or installed on the land which is the subject of the right to collateral security, thereby preventing the creditor from reducing the value of the secured property, and superficies have been created in the future, as well as in cases where the secured claim has been extinguished upon satisfaction due to repayment, etc., even if prescription has expired, such superficies shall be extinguished by the secured

Articles 279 and 369 of the Civil Act

Plaintiff (Law Firm two, Attorneys Noh Jeong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Korea, Attorneys Kang Jong-hoon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na74692 decided December 22, 2010

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. In light of the records, the court below's determination that each of the claims secured by the right to collateral of this case expired, is acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the starting point of time of the statute of limitations on the debt when promissory notes were issued for the payment

Meanwhile, in a case where the parties to the creation of a security right, such as a right to collateral security, have established the right to use the right after rent, or a building or structure is constructed or installed on the land which became the subject of the right to collateral security, with the principal purpose of preventing the creditor from reducing the value of the subject-matter of the right, if superficies were created in the future as well as in the case where the secured claim has been extinguished upon satisfaction with repayment, etc., the superficies shall be extinguished by the secured claim. The lower court is justifiable

2. Meanwhile, the argument in the grounds of appeal that the Plaintiff’s assertion of the completion of extinctive prescription by the instant lawsuit violates the good faith principle cannot be accepted in light of all the circumstances indicated in the record.

3. Therefore, all appeals are 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 Kim Ji-hyung (Presiding Justice)