Plaintiff (Attorney Cho Young-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Hong Ho-hun et al., Counsel for defendant-appellant)

May 29, 2014

1. The part concerning the claim of money among the lawsuits of this case shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The defendant delivers to the plaintiff 12, 8, 19, 10, 10, 11, 24, 16, 15, 14, 13, and 12 of the annexed drawings, among forest land 1786 square meters in Gangseo-si ( Address 1 omitted), and delivered 36 square meters in order to the plaintiff, 28, 29, 30, 31, 32, 33, 34, 25, 26, 27, and 28 of the same drawings, the amount of 14 square meters in the ship and the amount of 14 square meters in the order of 14 square meters in the ship, 40, 41, 42, 43, 45, 36, 37, 38, 39, 1300 square meters in the same drawings, 180 square meters in the ship, 200 square meters in the same order, 130 square meters in the above 1.

1. Facts of recognition;

The following facts are not disputed between the parties:

A. On November 11, 2002, 2002, the voluntary auction procedure was initiated with respect to the forest land prior to the subdivision, which was owned by the Defendant. Nonparty 2 completed the registration of ownership transfer on July 10, 2003 upon the successful bid of the said forest. Nonparty 3 purchased the said forest land from Nonparty 2 and completed the registration of ownership transfer on August 26, 2003. The Plaintiff completed the registration of ownership transfer on August 26, 2003. The Plaintiff purchased the said forest land from the said Nonparty 2 and completed the registration of ownership transfer on August 16, 2003. The Plaintiff purchased the forest land ( Address 1 omitted), 1786 square meters in Gangseo-si ( Address 2 omitted), 2089 square meters in the forest ( Address 2 omitted), and 183 square meters in the name of each of the said forests on April 17, 2009.

B. Among the forest land in this case, the point of the separate sheet No. 12, 8, 19, 9, 10, 11, 24, 16, 15, 14, 13, and 12 are connected in order to each of the following points; Da, part No. 366 square meters (hereinafter “the part No. 28,29, 30, 31, 32, 33, 34, 25, 26, 27, and 28; hereinafter “the part No. 5”) among the forest land in this case, the part No. 40, 41, 42, 43, 36, 37, 38, 39, and 400 square meters connected to the above part No. 5 of the grave in order to each of the above part No. 14 and the part No. 5 of the grave in this case were installed by the Defendant on the ground (hereinafter “the above part No. 141”).

C. Meanwhile, the Plaintiff filed a lawsuit against the Defendant on the ground that: (a) the delivery of the instant part of the forest land to the Defendant, (b) the delivery of the instant part; (c) the removal of the instant part’s ma, the instant part’s fyp and the fypstones; and (c) the removal of the gypstones; and (c) the said court dismissed the Plaintiff’s claim on the ground that the Defendant acquired the right to grave base on February 20, 2013; and (c) the said claim as to the Plaintiff’s claim, “the Defendant shall be dismissed; and (c) the lower court rendered a final judgment on April 17, 2009 to November 10, 2012, with the Plaintiff’s share of the forest land to KRW 1,356,930, and the Plaintiff’s share of the instant portion from November 10, 2012 to KRW 30,000 on the following day; and (d) the Plaintiff’s share or the Plaintiff’s share of the instant land.

2. Summary of the plaintiff's assertion

As the cause of the instant claim, the Plaintiff filed a claim for the extinction of the right to grave base in accordance with Article 287 of the Civil Act, on the ground that the Defendant had a duty to pay the land rent to the Plaintiff in accordance with the above judgment, and filed a claim for the extinguishment of the right to grave base in accordance with Article 287 of the Civil Act, and filed a claim for the return of unjust enrichment equivalent to KRW 1,788,690, the amount equivalent to the instant portion (i.e., delivery of the instant portion; (ii) the instant portion; (iii) the removal of the instant portion; and (iv) the removal of the b) the instant portion from April 17, 2009 to November 9, 2013; and (iv) the amount equivalent to KRW 35,980, monthly from November 1

3. Determination on the legitimacy of a lawsuit

Since the above part of the lawsuit of this case is a final and conclusive judgment in favor of the Supreme Court as to the legitimacy of the claim for restitution of unjust enrichment among the lawsuits of this case ex officio, it is unlawful as it does not have any benefit of lawsuit.

3. Determination on removal and request for extradition

A. In light of the unique nature of the right to grave base, Article 287 of the Civil Act concerning superficies cannot be deemed to apply mutatis mutandis (see, e.g., Supreme Court Decision 81Da1220, Jan. 26, 1982). Therefore, the Plaintiff’s claim premised on this cannot be seen as having been examined further.

B. Even if Article 287 of the Civil Act is applied mutatis mutandis, in cases where statutory superficies is established and the amount of the rent is determined by the judgment, if the person holding superficies has delayed the payment of the rent for a considerable period of time due to a cause attributable to him/her even after he/she received a claim for the rent after the judgment became final and conclusive, even if the delayed rent exceeds two years, the landowner may claim the termination of the superficies pursuant to Article 287 of the Civil Act (see, e.g., Supreme Court Decision 92Da44749, Mar. 12, 1993). However, there is no evidence to prove that the Plaintiff claimed the rent to the Defendant after the judgment became final and conclusive, and therefore, the Plaintiff’s claim for this part is without merit.

3. Conclusion

Therefore, the part of the lawsuit in this case is unlawful and dismissed, and the removal and delivery request are dismissed as it is without merit. It is so decided as per Disposition.

[Attachment Form Omission]

Judges Seo-won