(a) Whether landowners have right to use and benefit from land allotted by the authorities in recompense of development outlay;

(b) Removal of buildings based on the ownership of the land owner and the principle of good faith for the person in the position to acquire legal superficies;

C. A claim for restitution of unjust enrichment from a land owner on a rent-based legal superficies and the principle of good faith

A. According to the provisions of Article 57 (4) of the Land Readjustment Projects Act, when the land designated as the land allotted by the authorities in recompense for development outlay has not been designated as the land scheduled for substitution, the landowner may continue to use and benefit from the land until the time of the land substitution disposition, unless there is a disposition of suspension for use

B. A person who takes over a building from the owner of a building with legal superficies and wants to take over the legal superficies to take over the building can seek implementation of the procedure for creation registration and registration of transfer in sequence against the owner of the building and the owner of the building in accordance with a creditor subrogation doctrine. Thus, a person who is in the position to acquire the legal superficies can seek removal of the building based on ownership is a claim against the owner of the building, who is obligated to take the burden of the superficies and to perform the registration of creation. Therefore, it is not permissible under the principle

C. Even if legal superficies is the legal superficies owner, a person who is in the position to acquire legal superficies is also obligated to pay rent to the land owner, and a person who is also in the position to acquire legal superficies cannot be exempted from the obligation to return land rent or rent profit to the land owner. Therefore, such a claim for return of unjust enrichment per rent cannot be deemed as going against the principle of good faith.

(a) Articles 54 and 57(4)(b) of the Land Readjustment Projects Act;

B. Supreme Court en banc Decision 84Meu1131, 1132 Decided April 9, 1985, Supreme Court Decision 87Meu607 Decided September 10, 1985, Supreme Court Decision 87Meu279 Decided September 27, 1988

Plaintiff

Defendant-Appellee et al.

Seoul High Court Decision 86Na4667 delivered on June 5, 1987

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

1. We examine the first ground for appeal by the defendant's attorney.

According to Article 57 (4) of the Land Readjustment Act, in case where the land secured for replotting has been designated as the land secured for recompense of development outlay under the provisions of Article 54, the executor may allow the land developer to use or profit from the land in order to appropriate for the expenses of the land compartmentalization and rearrangement project, or dispose of it. Thus, if the land designated as the land secured for recompense of development outlay has not been designated as the land secured for replotting, the landowner may continue to use or benefit from the land until the land substitution disposition is

According to the reasoning of the judgment below, the court below determined that the designation of land substitution was made on February 9, 1942 about 182 square meters of Dongdaemun-gu, Seoul (No. 1 omitted), which is the land in this case, and that the land was designated as a development recompense land on August 17, 1983 by the designation of land substitution substitution, and that the land was not designated as a land substitution under Article 52 of the Land substitution and Rearrangement Project Act, and that a new parcel number was granted to the land in Dongdaemun-gu, Seoul (No. 2 omitted) by the public announcement of land substitution disposition on March 5, 1986, and that the land in this case, which is the previous land, was designated as a development recompense land without the designation of land substitution as a land substitution, the plaintiff has the right to continue to use and benefit, and therefore, the judgment of the court below is just and without merit, and it is not a proper precedent in this case.

2. We examine the second ground for appeal.

A person who takes over a building from the owner of a building with a legal superficies and takes over the legal superficies to take over the legal superficies can seek implementation of the procedure for creation registration and transfer registration in sequence against the owner of the building and the owner of the site in accordance with a creditor subrogation doctrine. As such, a site owner’s seek for removal of the building based on ownership against a person who is in the position to acquire the legal superficies is a claim against the right holder by a person who is obligated to take the burden of the superficies and to perform the registration of creation, and thus, it is not permissible under the principle of trust and good faith. This is

However, even if legal superficies is a legal superficies holder, it is obligated to pay rent to the land owner, and it is not possible to exempt him from the obligation to return land rent or rent profit to the land owner on the ground that he is in the position to acquire legal superficies. Therefore, such claim for return of unjust enrichment for the rent party cannot be viewed as violating the principle of good faith.

Since it is apparent that the plaintiff's claim is the claim for return of unjust enrichment as above and it is not the claim for damages on the ground of illegal occupation like the theory of lawsuit, there is no argument that the judgment of the court below which admitted it on the premise that it is the claim for damages is contrary

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

Justices Lee Jae-sung (Presiding Justice)