In case where both land and buildings belong to the state ownership, and only land is sold to an individual, whether the possession of the building site by the state, the owner of the building, is an autonomous possession (negative)

In a case where both land and buildings belong to the state ownership, and each owner becomes an individual, and each owner becomes an individual, if a special agreement is made to remove a building on the ground at the time the land is not made, the possession of the building site by the state which is the owner of the building cannot be regarded as an autonomous possession due to the nature of the source of the possessor’s right. In addition, even if a customary legal superficies is created due to the absence of a special agreement to remove the building on the ground, such possession should be regarded as not an autonomous possession of the possessor’

Articles 197(1) and 279 of the Civil Act

Error Young-young et al., Counsel for the defendant-appellant

Attorney Lee Jin-gun et al., Counsel for the defendant-appellant

Gwangju High Court Decision 88Na2457 delivered on July 19, 1989

The appeal application is dismissed.

The defendant's attorney's ground for filing an appeal is examined.

According to the facts duly established by the court below, the land in this case was originally reverted to the original property, which was used as a police assistant officer or senior officer from the State on August 24, 1983, and was sub-owned on December 31, 1956, and completed the registration of ownership transfer on December 31, 1956. Meanwhile, according to the evidence No. 21-1 and No. 6, which was not rejected by the court below, it is recognized that the above government-owned building was a state-owned building.

In light of the above facts, in a case where both the above land and the above buildings belong to the state owned by the state, and each owner comes to own land due to the sale of the land to the non-party order and the other owner becomes different, if there is no special agreement to remove the above ground buildings at the time of the above land is not made, the possession of the land site of the state which is the owner of the building cannot be regarded as the autonomous possession due to the nature of the owner of the right, and even if the legal superficies under customary law is generated due to the absence of a special agreement to remove the building, it cannot be deemed that the possession based on the legal superficies under customary law is not the autonomous possession, but the possession is not the possession by the nature of the owner of the right of possession.

However, around December 31, 1956, when the defendant military asserted as the opening date, it is clear that the defendant military had possession of the above land as a local administrative agency of the State. Thus, it cannot be deemed as the possession of the above land due to the nature of the source of possessory right as mentioned above, and even if the defendant military succeeded to the possession as a local government, the previous possession does not change naturally into the possession with the intention of possession.

The reasoning of the judgment of the court below is insufficient, but it is interpreted that the source of possessory right was occupied by the nature of the source of possessory right in the above purport. Thus, the court below did not err by misapprehending the legal principles of Article 197(1) of the Civil Act, or by failing to bear the burden of proof, or by failing to meet the reasons.

In addition, it is difficult to view that the judgment of the court below contains an important commercial part on the interpretation of statutes, and thus, the application for permission of appeal is dismissed. It is so decided as per Disposition by the assent

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)