[1] In a case where a land and a ground building were transferred together to another person, and only the transfer of a building is revoked by the exercise of the right of revocation, and the transfer of ownership in the name of a beneficiary and a subsequent purchaser is cancelled, whether the land and a ground building owned by the same person fall under the requirements for establishment of a statutory superficies under customary law (negative)

[2] Whether a purchaser who acquired legal superficies from a person who acquired the ownership of a building by auction acquires the superficies automatically (affirmative in principle), and whether the same applies to cases where a beneficiary of a fraudulent act or a subsequent purchaser acquired the legal superficies as the owner of a building, and the subsequent purchaser cancelled the registration of transfer of ownership in the name of the beneficiary and subsequent purchaser by exercising the right of revocation, and the building is sold at the auction procedure (affirmative)

[1] In cases where the land and a building owned by the same person become different from the owner due to sale and purchase, etc., the owner of the building shall acquire statutory superficies for the purpose of owning the building, unless otherwise stipulated that the owner remove the building. However, the revocation of fraudulent act by exercising the right of revocation under Article 406 of the Civil Act and restitution of the deviation property by the exercise of the right of revocation shall take effect only in relation to the obligee, beneficiary, or subsequent purchaser, and the obligor does not acquire the right directly. Thus, even if the transfer of the building was revoked by exercising the right of revocation and the registration of transfer of ownership in the name of the beneficiary and subsequent purchaser was revoked by exercising the right of revocation, this does not constitute “the case where the owner becomes different from the owner due to sale and purchase, etc., of the land and the building owned by the same

[2] In a case where land and a building on the ground, which were owned by the same person at the time of the establishment of mortgage, become different from the owner due to an auction, the owner of the building shall obtain legal superficies under Article 366 of the Civil Act for the ownership of the building. In addition, barring special circumstances, such as where the purchaser, who acquired legal superficies for the ownership of the building by auction, sells the building at auction under the conditions of sale, such as the removal of the building after purchase, etc., the purchaser, who acquired the ownership of the building, shall acquire the above superficies as a matter of course. Such legal doctrine applies likewise to cases where the beneficiary or the subsequent purchaser, as the owner of the building, acquired the legal superficies as the owner of the building, and thereafter the ownership transfer registration in the name of the subsequent purchaser

[1] Articles 279 and 406(1) of the Civil Act / [2] Articles 100(2), 366, and 406(1) of the Civil Act

[1] Supreme Court Decision 96Da40080 Decided January 21, 1997 (Gong1997Sang, 608) Supreme Court Decision 98Du11458 Decided December 8, 200 (Gong2001Sang, 301) / [2] Supreme Court Decision 2010Da67159 Decided January 13, 201 (Gong201Sang, 3345 Decided September 12, 2013)

Plaintiff 1 and one other (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

Defendant

Daegu District Court Decision 2012Na7234 decided July 20, 2012

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below and the record, ① Nonparty 1 acquired the ownership of the instant land and the instant land and the instant building between February 8, 1991 and July 10, 1995; ② Nonparty 1 sold the instant building and the instant land to Plaintiff 2 on February 23, 200, and completed the registration of ownership transfer on February 25, 200. Of them, the registration of ownership transfer was cancelled on the ground of a final judgment rendered by fraudulent act cancellation case on February 25, 2005, ③ Nonparty 2 acquired the ownership of the instant land from the auction procedure established on July 19, 195 by paying purchase price on October 1, 204, and the Defendant acquired the ownership of the instant land from the instant land, which was subject to the registration of ownership transfer transfer from the auction procedure established on July 19, 1995, ④ Nonparty 1 acquired the ownership of the instant land from the date of enforcing the registration of ownership transfer transfer from the instant land to the auction procedure.

2. (a) First, the above part of the land No. 2 in this case shall be considered to be the second part.

In a case where the land and the building on the ground belonging to the same person become different from the owner due to the sale and purchase of the land and the building on the ground, the owner of the building shall obtain statutory superficies for the ownership of the building (see Supreme Court Decision 96Da40080, Jan. 21, 1997, etc.). However, the revocation of fraudulent act due to the exercise of the right of revocation under Article 406 of the Civil Act and restitution of deviating property is only effective in relation to the creditor, beneficiary, or subsequent purchaser, and it does not directly acquire the right of the debtor (see Supreme Court Decision 98Du11458, Dec. 8, 200, etc.). Even if the land and the building on the ground were transferred together with the right of revocation and the transfer of ownership in the name of beneficiary and subsequent purchaser is revoked according to the exercise of the right of revocation, which is a customary requisite for the establishment of legal superficies, and it cannot be deemed that the owner is different from the owner due to the sale and purchase of the land and the building on the ground.

In light of the above facts in light of the above legal principles, even if Nonparty 1 sold the instant building and the instant land No. 2 to Plaintiff 2, but the sales contract was revoked only for the instant building upon the exercise of the obligee’s right of revocation, and the registration of transfer of ownership by Plaintiff 2 was revoked, Plaintiff 2 shall be deemed to have owned all the instant land and the instant building even until the seizure of the instant building takes effect. Therefore, as the Defendant purchased the instant building during the compulsory sale procedure for the above compulsory sale and paid the purchase price thereof on August 17, 2007, and thus the two owners are different, it is reasonable to deem that the Defendant acquired the statutory superficies for the said two parts of the instant land among the instant land No. 2.

B. The following is deemed to have been made with respect to the land No. 1 of this case.

In a case where the land and the building on the ground, which were owned by the same person at the time of the establishment of mortgage, become different from the owner due to an auction, the owner of the building shall obtain statutory superficies under Article 366 of the Civil Act for the ownership of the building (see, e.g., Supreme Court Decision 2010Da67159, Jan. 13, 201). Furthermore, barring special circumstances, such as where the purchaser who acquired statutory superficies from the person who acquired the building for the ownership of the building sells the building at auction under the condition of sale such as the removal of the building after the purchase, the purchaser who acquired the ownership of the building at the auction, is naturally entitled to acquire the said superficies (see, e.g., Supreme Court Decision 2013Da4345, Sept. 12, 2013). This legal doctrine likewise applies to cases where a beneficiary or subsequent purchaser, as the owner of the building, acquires the statutory superficies and the subsequent purchaser’s ownership transfer registration in the name of the beneficiary and the subsequent building is cancelled in the auction procedure.

In light of the above facts in light of the above legal principles, since the land No. 1 and the building of this case belong to the non-party 1's ownership at the time of the establishment of the above right to revoke the right to revoke the registration of ownership transfer of the building of this case, and the non-party 2 purchased the land of this case and paid the purchase price on Oct. 1, 2004 to the non-party 1 at the auction procedure conducted with the above right to revoke the registration of ownership transfer, it is deemed that the non-party 2, the owner of the building of this case, at the time of the payment of purchase price, acquired the legal superficies under Article 366 of the Civil Act for the part of the above right to revoke the registration of ownership transfer of the building of this case among the land of this case, and the defendant acquired the ownership of the building of this case at the auction

C. Although there is no somewhat inappropriate part in the judgment of the court below, the conclusion of the court below that accepted the defendant's defense as to legal superficies and rejected the plaintiffs' claim for removal of the building and delivery of land is just, and contrary to what is alleged in the grounds of appeal, there is no error of law by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules or by

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 Lee In-bok (Presiding Justice)