Plaintiff

Defendant (Attorney Park Jae-soo, Counsel for the defendant-appellant)

July 10, 2009

Daejeon District Court Decision 2007Kadan7012 Decided February 13, 2009

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the above part shall be dismissed;

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Claim: The defendant removes 136 square meters of land-based neighborhood living facilities on the ground of cement block projected parts of the attached list to the plaintiff, among each real estate listed in the attached list, the following parts are attached in sequence 1, 2, 3, 4, 17, 12, 13, 14, 15, 15, 7, 8, 9, and 1,2, 3, 4, 5, 5, 6, 7, and 136 square meters, and the above part is delivered to the plaintiff.

2. Purport of appeal: The part against the plaintiff falling under the order of removal and delivery under the judgment of the court of first instance shall be revoked. The defendant shall remove 1,2, 3, 4, 5, 6, 7, 8, 9, and 1 attached Table No. 1, 2, 3, 4, 6, 7, 8, 9, and 1 attached Table No. 1, 2, 3, and 83 square meters of the above part among each real estate listed in the attached list to the plaintiff, and deliver the above part to the plaintiff.

3. Purport of incidental appeal: as referred to in paragraph (1) of this Article;

1. Basic facts

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the cause of the claim

Since July 6, 2007, the facts that the land of this case was owned by the Plaintiff; the Defendant purchased the previous unregistered buildings from the flexible around July 1, 1991, and the previous unregistered buildings from Nonparty 1 around October 29, 2001, and completed the new buildings by constructing the previous registered buildings and the unregistered buildings on or around March 2003. As seen above, the Defendant operated the entertainment tavern under the trade name of “○○○” in the new building, and there is no dispute between the parties. In full view of the result of the on-site inspection conducted by the court of first instance and the purport of the testimony conducted by Nonparty 2, the court of first instance, as a result of the examination conducted by the first instance and Nonparty 2, the following facts can be acknowledged: (a) the attached appraisal of each of the land of this case is indicated as 1,2,3,4,17,14,15, 17, 17, 18, 97, and 13.

According to the above facts, the defendant is the owner of the previous registered building among the new buildings, and as a person in a position to legally or factually purchase and dispose of the remaining parts, even if the registration on acquisition of ownership was not made, and as a person who is in a position to purchase and dispose of it. Among each of the land of this case, the land of this case, the land of this case, the above 1, 2, 3, 4, 5, 6, 7. Thus, the defendant has a duty to remove the new building and deliver the land of this part,

3. Judgment on the defendant's assertion

A. Summary of the defendant's assertion

1) Since statutory superficies has been established pursuant to Article 366 of the Civil Act with respect to 1, 2, 3, 4, 5, 6, 7, 8, 9, and 83 square meters in sequence of each of the instant lands, with respect to 1, 2, 3 and 83 square meters in common among the instant lands, the claim for removal of 1, 2, and 33 square meters in common, and the claim for removal of 83 square meters in common, is unreasonable.

2) Of the instant land, the appraisal of the attached sheet Nos. 4,5, 6, 7, 15, 14, 13, 12, 17, and 53 square meters of the attached sheet No. 4,5, 6, 7, 15, 14, 12, 17, and 4 are annexed to a building owned by the Defendant, and the legal superficies is established, and the legal superficies is effective. Thus, the above divities, 5, 6, 76, 7, and 53 square meters of the attached sheet No. 4, and the claim for removal of the attached sheet No. 4, 5, 5, 7, 17, and 53 square meters of the attached sheet No.

B. Determination

1) In order to establish legal superficies under Article 366 of the Civil Act, there should be a building on the land which is the object of a mortgage at the time of establishing a mortgage, so long as there was a building at the time of establishing a mortgage, there is no problem in establishing a legal superficies even if the building was reconstructed or expanded, as well as where the building was reconstructed or newly built after the required building was demolished or demolished, and in this case, it does not require the identity between the new building and the previous building. However, the duration, scope, etc. of the legal superficies shall be limited to the extent generally necessary for its use based on the previous building (see, e.g., Supreme Court Decisions 90Da19985, Apr. 26, 1991; 96Da4080, Jan. 21, 1997).

With respect to the instant case, on November 6, 2001, each of the instant lands and the previous registered buildings on which the right to collateral security was established in the name of Jinjin-gu, and each of the previous registered buildings and the previous unregistered buildings on each of the instant lands was located at the time the said right to collateral security was established, and all of the instant lands and the previous registered buildings were owned by the Defendant, and the fact that the Plaintiff acquired the ownership after being awarded a successful bid for each of the instant lands at the auction procedure on each of the instant lands on July 6, 2007.

Meanwhile, in full view of the overall purport of pleadings in the statements or images of evidence Nos. 5, 7 and 10, evidence Nos. 11-1 through 5, evidence Nos. 11-2, and evidence Nos. 2, and evidence Nos. 11-2, and witness No. 3 of the first instance trial, the Defendant changed the previous registered building and the roof of the unregistered building into one board board, around March 2003, the two buildings are changed into one board, and the construction of a new building is found to have been built by connecting two buildings to the outside wall after destroying the walls of the opposite side of each other and combining them into one building. According to the above facts of recognition, the previous registered building and the previous unregistered building are bound to be interpreted as one building which has ceased to be independent of their structure, and ultimately, since the unregistered part due to the integration or body constitutes a new building that corresponds to the previous registered part under Article 256 of the Civil Act, its original purpose and identity is recognized.

Therefore, on July 6, 2007, when the Plaintiff acquired ownership of each of the instant lands, the land and the building became different owners by acquiring ownership of each of the instant lands, the Defendant acquired legal superficies for each of the instant lands to the extent necessary for the maintenance and use of the new building.

2) On this issue, the Plaintiff asserts that, in order to establish legal superficies under Article 366 of the Civil Act, only one of the land and buildings to which the same owner belongs is established, the ownership of the land and buildings depends on the execution of the mortgage after establishing the mortgage. Therefore, if a joint mortgage was established on the land and buildings as in the instant case, the statutory superficies is not established.

Unless there are special circumstances, such as establishing a joint mortgage on the land and buildings owned by the same person and removing the new building and establishing a new building, the owner of the new building is identical to the owner of the land, and the mortgagee of the land establishes a joint mortgage on the same order of priority as the mortgage on the land. Thus, even if the land and the new building belong to another owner due to the auction of mortgaged property, it is reasonable to interpret that the statutory superficies for the new building is not established even if the land and the new building belong to the other owner (see Supreme Court en banc Decision 98Da43601 delivered on December 18, 2003). The fact that the joint collateral mortgage was established on each of the land in this case and the previous building in the name of Jinjin-gu on November 6, 2001 is as seen earlier, but there is no evidence to acknowledge that the new building was demolished or demolished after the new building was removed or demolished.

In addition, the plaintiff set up a right to collateral on November 6, 2001 with respect to the land owned by the defendant, and the 17th of the same month also set the superficies under the name of the Sil Jinjin. If the defendant acknowledged the legal superficies on the land, it is alleged to the purport that it would infringe on the above superficies and thus be unfair. However, the above superficies under the name of the Sil Jin Jae-gu was extinguished due to the execution of the above right to collateral security under the name of the Sil Jinjin-gu under the provisions of Article 91(3) of the Civil Execution Act. Thus, the plaintiff's above assertion on the premise of the existence of a senior superficies is without merit.

3) Furthermore, with regard to the scope of the above legal superficies, the purport of recognition is to prevent removal of the building and to maintain the value of the building by granting the right to use the land and the building which belongs to the same person, if any one of the land and the building belonging to the same person belongs to another person. This is to be limited to the extent necessary for the maintenance and use of the building existing at the time of establishment of the above legal superficies. The scope of recognition is to be limited to the previous registered building and the previous unregistered building are combined and combined with one building, and its identity is recognized between the previous registered building and the new building which were the original object of the right to collateral security. In this case, the scope of the above legal superficies in this case is to be considered to be the scope necessary for the maintenance and use of the new building as of July 6, 2007, which was used as the new site, and to be connected to each of the land in this case, the appraisal of which was indicated in the attached Form 1, 1, 371, 47, 14, 17, 1, 47, 1, 1, 47.

4) Therefore, the defendant's above assertion is with merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the part against the defendant in the judgment of the court of first instance which has different conclusions is unfair, it is revoked by accepting the defendant's incidental appeal, and the plaintiff's claim corresponding to the above revoked part is dismissed, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.

[Attachment of Real Estate List and Appraisal]

Judges Joh Sung (Presiding Judge)