[1] In a case where a co-owner of the previous land has divided ownership of the previous land by specifying the land scheduled for substitution, and at the time when a party Gap transferred his owned portion to Eul, and at the time when the transfer registration of ownership was made, Gap was at the completion stage of the building under construction on that ground, whether Gap has legal superficies under the customary law as to the previous land (affirmative)

[2] Whether a transferee of a building with statutory superficies shall return the benefit gained by occupying and using the site to the owner of the site in unjust enrichment even if he/she owns and uses the site (affirmative)

[1] In a case where the co-owners of the previous land specified and partitioned the land as a planned land substitution under the agreement of the co-owners, one of them transferred the ownership part of the land as planned land substitution and completed the registration of share ownership transfer. At that time, in a case where the building under construction was completed in whole and only the finishing construction work was left behind, the other co-owners waive the right to use and benefit from the co-ownership of the previous land as planned land substitution under the agreement between the co-owners, and even the other co-owners accepted the right to use and benefit from the previous land owned by the Gap and the third party based on the statutory superficies as to the previous land. Thus, Gap has legal superficies under the customary law as to the previous land jointly owned by Eul, etc. for the purpose of owning the building.

[2] Even a legal superficies holder is obligated to pay rent to the site owner, and even if the transferee of a building with legal superficies is in the position to acquire the legal superficies, he/she may refuse the removal of the building from the site owner or the claim for delivery of the site, the benefit accrued from the occupation and use of the site is obligated to return it to the site owner as unjust enrichment.

[1] Article 366 of the Civil Code / [2] Articles 366 and 741 of the Civil Code

[1] Supreme Court Decision 89Meu24094 delivered on June 26, 1990 (Gong1990, 1565), Supreme Court Decision 92Da7221 delivered on June 12, 1992 (Gong1992, 2137), Supreme Court Decision 93Da49871 delivered on January 28, 1994 (Gong1994, 828) / [2] Supreme Court Decision 87Da1604 delivered on October 24, 198 (Gong198, 1463), Supreme Court Decision 94Da6144 delivered on September 15, 195 (Gong195, 3389)

Plaintiff (Attorney Kim Jong-sung, Counsel for plaintiff-appellant)

Defendant 1 and one other

Busan District Court Decision 95Na2521 delivered on June 28, 1996

Of the lower judgment, the part on Defendant 1 and the part on the claim for return of unjust enrichment against Defendant 2 are reversed, and that part of the case is remanded to Busan District Court Panel Division. The remainder of the Plaintiff’s appeal is dismissed. The costs of appeal as to the dismissed part are assessed against the Plaintiff.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below, based on the selected evidence, determined that the co-owners of the area of 1,673 square meters of the previous land ( Address 1 omitted) in Ulsan-gu, Ulsan-gu, which is the previous land shall be designated as the land substitution and divided ownership among co-owners, by the implementation of the land substitution and rearrangement project, and the location of the previous land shall be specified among the co-owners. The land substitution was finalized on October 31, 1989 as the land of this case on which the land substitution was made. With respect to the land of three parcels of land such as this case, the non-party et al. as to the previous land shall transfer the land substitution to the plaintiff on September 3, 1983, and the land substitution was not finalized until the land substitution is finalized. The court below's determination of facts as to the co-ownership share of the previous land is just and there is no error in the misapprehension of the facts as alleged in the grounds for appeal.

If the building of this case was constructed to the extent above at the time the plaintiff acquired the land scheduled for substitution from the non-party and completed the registration of ownership transfer for the previous land, the non-party acquired legal superficies under the customary law on the previous land owned by the plaintiff et al. for the purpose of owning the building of this case.

Although the judgment of the court below is somewhat insufficient, the conclusion that the non-party acquired legal superficies under the customary law is justifiable, so there is no error of law by misunderstanding legal principles as otherwise alleged in the ground of appeal. In the case where only one of co-owners owns a building on the co-owned land and transfers only the co-owned share of the land, the legal superficies under the customary law for owning the building is not recognized (see, e.g., Supreme Court Decision 92Da55756, Apr. 13, 1993). In such a case, the purport of recognizing legal superficies under the customary law is that if one of the co-owners recognizes legal superficies under the above common law, it would allow one of the co-owners to dispose of superficies until the other co-owners' share of the co-owners, and in this case, as long as the non-party agreed to own the land as a planned land substitution under the agreement among the co-owners, other co-owners waive their right to use and benefit from the previous land on the land scheduled for substitution, and thus it cannot be viewed that the non-party or the previous land substitution under the common law.

In addition, even if the Plaintiff was registered as the first owner in the building management ledger of this case, there is no obstacle to the Nonparty’s acquisition of statutory superficies under the customary law for the ownership of the building of this case. Thus, even if there was an error of omission of judgment as alleged in the judgment below, it does not affect the conclusion of the judgment. In addition, even if a judicial compromise was reached between the Plaintiff and the Nonparty on April 18, 1983, where the Plaintiff did not pay KRW 45,000,000 to the Plaintiff by December 31, 1983, that the building of this case was transferred and ordered to surrender the building of this case, and accordingly, it cannot be deemed that the building of this case was owned by the Plaintiff from the beginning or that the Nonparty gave up its statutory superficies in advance, and thus, the argument in the grounds of appeal against the judgment below cannot be accepted.

2. According to the reasoning of the judgment below, based on the above factual basis, the court below held that the non-party, after acquiring legal superficies, sought implementation of the registration of creation of legal superficies in the name of the non-party, who is the first owner of the building site of this case, which is the co-owner of the building of this case, the land of this case, which was decided by subrogationing the former through the compulsory auction procedure for the building of this case, and sought implementation of the registration of creation of legal superficies in the name of the non-party, who is the first owner of the building of this case, and can seek implementation of the registration procedure for creation of legal superficies in order against the former. Thus, the court below held that the plaintiff, who is obligated to implement the registration procedure for creation of legal superficies, sought the return of unjust enrichment equivalent to the rent due to the possession and use of the building of this case against the defendant 1 based on the co-ownership right of this case

However, even if legal superficies is the owner of a building with legal superficies, and even if a transferee of a building with legal superficies may refuse to remove the building of the owner of the site or to transfer the site when he/she is in the position to acquire the legal superficies, he/she is obligated to return the benefits obtained by occupying and using the site to the owner of the site as unjust gains (see, e.g., Supreme Court Decision 94Da61144, Sept. 15, 1995). Thus, Defendant 1, who acquired the building of this case by a successful bid, is obligated to pay the Plaintiff the amount of money equivalent to the land rent, even if he/she acquires the legal superficies without registration. However, Defendant 2 is in the position to seek the removal of the building of this case or the transfer of the site of this case by subrogation of Nonparty and Defendant 1, and thus, the Plaintiff is not allowed under the good faith principle. However, Defendant 2 is obligated to return the benefits that he/she acquired by occupying and using the site to the Plaintiff as unjust gains.

Nevertheless, the court below rejected the plaintiff's claim seeking payment of the amount of money equivalent to the rent against the defendants who occupied and used the land reserved for replotting or the land of this case. Thus, the court below erred by misapprehending the legal principles on statutory superficies or unjust enrichment, which affected the conclusion of the judgment, and the defendants' assertion that the defendants are not in a position to exercise statutory superficies is also included in the ground of appeal that the defendants are obliged to return unjust enrichment equivalent to the rent. Thus, the ground of appeal on this part is with merit.

3. Therefore, of the judgment below, the part concerning Defendant 1 and the part concerning the claim for return of unjust enrichment against Defendant 2 are reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeals are dismissed. The costs of appeal as to the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)