Cases where there is an error of misunderstanding the legal principles of Article 366 of the Civil Code in determining land fees based on legal superficies.

The purpose of the law recognizing legal superficies is to prevent social and economic losses, such as removal of buildings, if land and buildings on the ground of auction of mortgaged objects belong to the ownership of each other, and it is not to protect the interests of the parties on the other hand. Therefore, the court should consider all the circumstances at the time of establishing legal superficies at the time of establishing legal superficies and to harmonize both interests of the parties and not give disadvantage or benefits unfairly to any other party on the other hand. However, the court below decided that the land and buildings on the ground that ownership is restricted due to legal superficies without any explanation of other special circumstances, which is less than the half of the general rent, and which is less than the half of the general rent, was unfairly disadvantaged to the land owner, and thus, the court below erred in the misapprehension of the legal principles of this Article.

Article 366 of the Civil Act

Plaintiff

Defendant

Gwangju High Court Decision 65Na139 delivered on November 17, 1965

The part of the lower judgment against the Plaintiff is reversed;

This is remanded to the Gwangju High Court.

The defendant's appeal is dismissed.

Costs of lawsuit arising from the defendant's final appeal

The defendant is borne by the defendant.

(1) First, we examine the Plaintiff’s grounds of appeal.

On December 1, 1963, the court below found, based on evidence, that the rent for the general city rent of 44 square meters for the land was 22,00 won per month, and that the land was 22,000 won or more in comparison with other land sites, and that it was the main substance of the commercial building around it. However, on the ground that it is subject to the restriction on ownership by legal superficies, the court below held that the land was 10,000 won per month much more than 22,00 won per month in general rent for the land in this case.

However, the above ruling is not only unclear what theoretical basis is, but also the purport of the law which originally recognized legal superficies is due to auction of mortgaged objects, and it is based on the reason of public interest to prevent social and economic losses such as removal of buildings in cases where land and its ground buildings belong to the ownership of each other, and it is not intended to protect the interests of either party. Therefore, in determining the rent, the court should take into account the overall circumstances at the time of establishing the legal superficies into account at the time of establishing the legal superficies and harmonize the interests of both parties, and should not give any disadvantage or benefits unfairly.

However, without any explanation on the existence of any other special circumstances, the court below rendered that the ownership is restricted due to statutory superficies by reason of the fact that the ownership is less than half of the general rent, and that the land owner is at an unreasonable disadvantage. The court below erred by misapprehending the legal principles of Article 366 of the Civil Act, or by failing to pay for the reason. The arguments are with merit.

(2) Next, we examine the Defendant’s grounds of appeal.

Even if each of the evidence prepared by the court below is well examined by the record, it cannot be said that there was any error in the cooking of evidence.

We can not be employed as an independent opinion only because it criticizes the judgment of the court below.

Therefore, it is so decided as per Disposition by the assent of all participating judges.

Supreme Court Judge Lee Young-sub (Presiding Judge)