The case holding that, in case where a person, who actually owns a specific portion of land registered as a co-ownership, sells only the portion of the land without any special agreement on the removal of the building on the ground and makes a share transfer registration for convenience, he shall acquire legal superficies under the common law for the possession of the building on the ground.

The case holding that, where a person who actually owns a specific portion of land registered as a co-ownership sells only the portion of the land without any special agreement on the removal of the building on the ground that he/she owns and makes a transfer of shares for convenience, the legal superficies under the common law for the possession of the building on the ground shall be acquired.

Article 279 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

zz. (Attorney Park Young-chul, Counsel for the plaintiff-appellant)

Papn Country and one other (Attorney Jeon-soo, Counsel for the plaintiff-appellant)

Busan District Court Decision 94Da10459 delivered on January 13, 1995

1. The judgment of the court below is revoked.

2. All of the plaintiff's claims are dismissed.

3. The costs of lawsuit shall be borne by the plaintiff in both the first and second instances.

Defendant Yoon-hee shall pay to the Plaintiff an amount equivalent to five percent per annum from the day on which the copy of the claim and the application for change of the cause was served to December 2, 1994, and twenty-five percent per annum from the day following the date of the original decision to the day of the original decision. The Defendant Pung-gu shall remove the Plaintiff the 244.3 square meters of the above site by removing the 2nd unit of the brick bedle 244.3 square meters of the half-gu, Ulsan-gu, Ulsan-gu, the 5 percent per annum from the day of the original decision, and the 25 percent per annum from the day of full payment. The Defendant Pung-gu shall pay to the Plaintiff the amount equivalent to five percent per annum from the day of the service of the copy of the above application to the day of the original decision. The Defendant Pung-gu shall remove the 24.3 square meters of the above site by removing the 2nd unit of the 58,471,200 won and the above 87,865 percent per annum per annum.

The same shall apply to the order.

1. Basic facts

The following facts are not evidence Nos. 1-1, 2, 2, 3, Eul evidence Nos. 2, 3, 7, Eul evidence Nos. 8-1, 2, and 3, evidence Nos. 8-2, and evidence Nos. 8-2, and evidence Nos. 1-2, 2, and 3, evidence Nos. 1-2, and evidence Nos. 1-2, and evidence Nos. 8

A. On October 31, 1989, the previous land, including the Ulsan-gu, Jung-gu, 582-3 large 24.3 square meters (hereinafter referred to as the site in this case), 582-1 large 224.6 square meters, 582-4 large 301.8 square meters as stated in the purport of the claim, was replaced with 1673 square meters, 764-2, 764-2, which is the previous land, by a land readjustment project. The plaintiff acquired 4612/1670 of the previous land from the Kim Jong-dong, Jung-gu, 5730 square meters, and 1638/168 of the land in this case, and the plaintiff acquired 467/167 of the previous land in the order of Kim Jong-gu, 1983 and acquired 4612/167 of the land in this case.

B. Defendant Yoon-hee was awarded a contract for construction of the second floor building on the ground of the Jung-gu, Jung-gu, Jung-dong 33 Blue-dong 2, Jung-gu, Jung-gu, Seoul, which was the land scheduled for replotting before the land substitution was determined according to the above disposition of replotting, and the construction of the building was completed on March 9, 1983 by obtaining a construction permit from the above Kim Jong-sung and his husband, who was his husband, on May 24, 1983. In order to secure the above construction cost claim, the above registration of the provisional attachment was completed in the name of the above Defendant on the same day, and the provisional attachment was also made in the name of the above Defendant.

C. In addition, on September 11, 1984, Defendant Yoon-hee applied for a compulsory auction on the above building for the execution of the above construction cost claim and completed the registration of ownership transfer on May 6, 1985 when the procedure was in progress, and completed the construction of the above building on June 10, 1985, and thereafter, he transferred the above building to the highest level of the defendant, and occupied and used the above 33rd block 2-1 cm land for the possession of the above building until the transfer of the registration of ownership transfer on December 26, 1988. Meanwhile, on the other hand, on December 26, 198, Defendant Yoon-hee occupied and used the building site of this case corresponding to the site of the above building until he acquired the registration of ownership transfer from Defendant Yoon-hee for the above building on December 26, 198.

2. Both claims;

Therefore, the plaintiff can exercise his right as co-owner with respect to the above land scheduled for replotting as well as with regard to the above land of this case which was confirmed as replotting as above, but as at least from June 10, 1985, on the ground that he was awarded a successful bid for the above building and completed the registration of ownership transfer under his name, the site of the above building, which is the part of the above land scheduled for replotting, from June 25, 198 to December 25, 198, before the completion of the registration of ownership transfer of the above building, was the land for the above land scheduled for replotting, and from December 26, 1988 to December 23, 1994, the land of the above building was occupied and used without any legal ground, and thus, the plaintiff's claim for the above sale of the above land of this case was made to the defendant Kim Jong-hee's owner with the above land's own ownership in order to be removed from the above land of this case, and the plaintiff's claim that the above land of this case was actually owned by the above land of this case.

3. Determination

A. First of all, if we look at only the facts under Paragraph 1, the Plaintiff’s above assertion is acceptable.

B. However, the evidence cited in the above above is that if the whole purport of evidence Nos. 5-1 to 5, Nos. 1 to 6-1 to 5 is combined, (1) part of the land scheduled for substitution as the site in this case among the land scheduled for substitution by the implementation of the above land readjustment project is 33-2mm2 in Ulsan-gu, Ulsan-dong, 33-3m24.3m2, which was determined to be substituted by the land in this case, and the above Kim Jong-dong, as shown above, the legal relation of the so-called sectional ownership, the ownership of which is already specified between co-owners on the previous land at the time of obtaining the building construction permit in its name, was established and actually owned by the above Kim Jong-dong, which was in the order of 1983.2m2, the above Kim Jong-dong, which was in the name of the above owner of the building, was transferred to the plaintiff Kim Jong-dong, who was in fact owned by the above owner of the building, in the order of convenience of the above 3198m2.

C. In addition, if the facts are as above, in light of the construction degree of the above building or the circumstance that the defendant Huhee could have completed provisional attachment execution of the above building with a certificate of the origin of the Ulsan Metropolitan City market even though the construction was not carried out by the above construction, the above building which was newly constructed in the order of Kim Jong-tae shall be deemed to have been an entity of the above previous building as at September 3, 1983 by transferring the land actually owned by the Dong to the plaintiff in the relation of sectional ownership, and making a registration of transfer of ownership of the above previous land for convenience. Thus, the above building and its site were owned by the owner of the above Kim Jong-tae, and the above building and its site were owned by the above Kim Jong-tae, and the above building and its site were transferred to the plaintiff on September 3, 1983, and the above building and its site were owned by the above owner, and the above building and its site were still owned by Kim Jong-tae in the relation of sectional ownership at the time of the above sale registration of the above building site.

Therefore, the plaintiff, who is in the position to independently divide the site of this case including the above site of this case and to accept the above burden of superficies, is obligated to perform the procedure for creation of superficies against the above Kim Jong-soo (realally, the plaintiff's claim for the registration of creation of superficies against others who are registered as having a co-ownership share for convenience in the site of this case, and for the registration of creation of superficies against others who are registered as having a right to share for convenience in the site of this case, and the above procedure for creation of superficies should be implemented after the plaintiff's sole ownership is registered in the external relationship. The above procedure for creation of superficies should be implemented. The above procedure for registration of creation of superficies should be implemented against the defendant Yoon-hee, and the defendant Yoon-hee has the duty to perform the above procedure for establishment of superficies in order to the defendant Kim Jong-tae's best order. Accordingly, the defendants can claim the above procedure for creation of superficies against the above plaintiff in subrogation of the above Kim Jong-tae's above right to claim the return of the above site of this case's land or building site of this case.

D. If the above Kim Jong, only one of the co-owners of the above building site, is deemed to have acquired legal superficies under the customary law for the ownership of the building site by transferring only one of the co-owners of the above building site to the plaintiff, it would be unfair to allow the above Kim Jong-type Kim to dispose of the creation of superficies to the other co-owners' share in the building site, so in such a case, legal superficies under the customary law would not be established. However, as recognized earlier, the above building site was registered as co-ownership of four persons, including the above Kim Jong-type Kim, but the above sectional ownership was actually owned by the above Kim Jong-type, and the above sectional ownership relationship remains in force after the land substitution is finalized. Further, as determined above, the obligation to establish superficies is only borne by the plaintiff, and since other persons registered as co-owners on convenience did not directly bear the above Kim Jong-type Kim-type duty to register the creation of superficies, it cannot be viewed to have inflicted any disadvantage on other co-owners in the name, even if the establishment of legal superficies under the customary law is recognized.

In addition, the Plaintiff expressed his/her intent to claim the termination of superficies through the instant lawsuit on the grounds that the Defendants did not pay rent for more than two years after the Plaintiff acquired the ownership of the said building. However, in this case where there is no evidence to support that the Plaintiff and the Defendants determined the data on statutory superficies under the customary law of this case, the Plaintiff cannot be deemed to have delayed the payment of rent even if the Defendants did not pay the rent (see, e.g., Supreme Court Decision 93Da5297, Dec. 2, 1994). Therefore, the Plaintiff’s assertion on the premise that the payment of rent under the customary law of this case was overdue is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court below is unfair with different conclusions, the judgment of the court below is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Choi Jin-hun (Presiding Judge) (Presiding Judge)