(영문) 전주지방법원 2020.09.09 2020가단1785

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(영문) 전주지방법원 2020.09.09 2020가단1785

지상권설정등기말소

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The plaintiff (appointed party)'s claim is dismissed.

Litigation costs shall be borne by the plaintiff (appointed party).

Reasons

Basic Facts

A. On November 23, 2010, the Defendant completed the registration of creation of superficies (hereinafter “the instant superficies”) under No. 69116 on November 23, 2010 with respect to the land of 4,565 square meters (hereinafter “instant land”) in Jeonju-gun, Jeonju-gun.

B. On January 24, 2019, the Plaintiff (Appointed) completed the registration of ownership transfer on February 11, 2019 due to the sale by compulsory auction on January 24, 2019 with respect to each of the instant land, and the Selection C completed the registration of ownership transfer on the same date due to sale on April 10, 2019.

[Ground of recognition] Plaintiff (Appointed Party)’s assertion as to Plaintiff (Appointed Party)’s assertion as to Plaintiff 1’s assertion, the Defendant concluded a superficies contract with the former owner of the instant land and completed the registration of creation of superficies of this case, and is irrelevant to the Plaintiff (Appointed Party) and the current owner. In addition, there is no building and structure on the ground of the instant land, and the Defendant does not exercise superficies at all, and the cause and purpose of creation of superficies is unclear. 2) The Defendant completed the registration of creation of superficies of this case by falsity for the purpose of evading the former owner’s obligation.

3) Therefore, the Defendant is obligated to cancel the registration of creation of the superficies of this case. As long as the registration of creation of superficies on the registry of real estate has been completed, the Defendant is presumed to have the superficies of this case, and the existence, procedure, and cause of the superficies of this case are presumed to be justifiable. Thus, it is presumed that the registration of creation has been completed according to the legitimate procedure and the valid cause, and there is no other assertion or evidence to reverse the said presumption.

Furthermore, superficies is a real right to use the land owned by another person for the purpose of owning buildings, other structures, or trees, and can be established effectively even if there is no party’s building or other structures on the ground.

In addition, superficies is against land owners.

유사 판례

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-대구지방법원 2015.05.14 2014나305222

-의정부지방법원 2019.07.18 2018나1637