Where one of the co-owners of land who own a building on co-owned land resells only the share of the land, whether the statutory superficies under customary law is established (negative)

If there is a ground to see that the statutory superficies under customary law has been established for one co-owner of the land as one co-owner of the co-owner of the land resells only the share of the land on co-owned land, the statutory superficies under customary law for the ownership of the building cannot be established in relation to the land concerned.

Article 366 of the Civil Act

Supreme Court Decision 86Meu2188 Decided June 23, 1987

[Judgment of the court below]

Defendant 1 and two others

Seoul Civil District Court Decision 86Na1645 delivered on December 19, 1986

The appeal is dismissed.

The costs of appeal shall be assessed against the defendants.

The grounds of appeal are examined.

In a case where one of the co-owners owns a building on co-owned land but only resells the co-owner's share of the land, and the ground for deeming that the statutory superficies under customary law was established for the ownership of the building arises, it is reasonable to view that the statutory superficies under customary law for the ownership of the building cannot be established as to the land (see, e.g., Supreme Court Decision 86Meu2188, Jun. 23, 1987). Therefore, in the facts established by the court below in the above purport, it is proper to determine that the legal superficies under customary law for the ownership of the building on the land of this case cannot be acknowledged to Defendant 1 in the facts established by the court below in the above purport.

It cannot be deemed that co-owner of a building site seeks removal of a building constructed without title on the ground as an act of preserving common property and without title. Furthermore, even if the building is used as a house and the value of the building is higher than the value of the site, the above circumstance alone cannot be readily concluded that the claim for removal of the building by the co-owner of the building site constitutes an abuse of rights. Thus, the judgment of the court below which rejected the defendants' defense of abuse of rights is justified, and there is no error of law such as misunderstanding of legal principles, incomplete deliberation, or lack of reasoning. The precedents of the lawsuit are different cases, and thus, it cannot be the appropriate precedent of this case. All of the arguments are groundless.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-Ba (Presiding Justice)