Whether Gap who acquired unregistered buildings together with the site is entitled to claim legal superficies under customary law against Eul who transferred the ownership to him/her only on the site and acquired the ownership of the building.

If Party A, who acquired an unregistered building, along with the site, completed the registration of ownership transfer for the said building site only, and did not complete the registration for the building, Party A cannot be deemed to have acquired the ownership for the said building; thus, Party B, who acquired the ownership by transfer from Party A, cannot claim the statutory superficies under customary law against the said land.

Article 366 of the Civil Act

[Judgment of the court below]

Defendant 1 and 2 Defendants, et al., Counsel for the defendant-appellant

Seoul Central District Court Decision 86Na2272 delivered on January 28, 1987

All appeals are dismissed.

The costs of appeal shall be assessed against the defendants.

The defendants' attorney's grounds of appeal are examined.

1. On the first and third points:

Since statutory superficies under Article 366 of the Civil Code is established when land and its ground buildings belong to another owner due to auction of mortgaged property, so long as the land of this case is not mortgaged property, there is no room to discuss whether the statutory superficies under the above Act is established.

In addition, even if Defendant 1 acquired the instant building along with the instant land, and completed the registration of ownership transfer, if Defendant 1 did not register the building, the said Defendant cannot be deemed to have acquired the ownership of the said building, and thus, the Plaintiff who acquired the ownership by transfer from the said Defendant cannot claim for the statutory superficies under customary law against the land. The same applies to the building without permission, which was originally unregistered, even if the said building was an unregistered building. Accordingly, the lower court’s decision that rejected the Defendants’ claim of statutory superficies is justifiable, and there is no grounds for criticism.

2. On the second ground for appeal:

The judgment of the court below to the same effect is just, and there is no error of law such as theory, since the registration of transfer of the plaintiff's title to the site of this case was not recognized as having been made mainly for procedural acts, and there is no other evidence to recognize it differently in the records, even through the evidence Nos. 3 and 4-1 and 2.

3. Therefore, all appeals are 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 judges.

Justices Park Jong-dong (Presiding Justice)