In the event of statutory superficies created, whether a legal superficies holder may file a lawsuit seeking reimbursement of the land rents with the legal superficies holder on the premise of the court’s decision to determine the land rents (affirmative), and whether the decision on the land rents as set out in the reasoning of the judgment in the above lawsuit becomes effective as the land rents decision between the landowner and the legal superficies holder (affirmative) / Whether the land rents for a specific period should be deemed as determined by the court as the amount equivalent to the land rents for the previous period (affirmative in principle), and whether the land rents for the subsequent period should be deemed as the land rents for the previous period if the legal superficies holder fails to pay the land rents determined by the court as above (affirmative)

Articles 279, 286, 305, and 366 of the Civil Act; Article 216 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 2002Da61934 delivered on December 26, 2003 (Gong2004Sang, 209)

Plaintiff (Law Firm Kang, Attorneys Park Young- Line et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Staff, Attorneys Lee Han-ju et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2018Na2040042 decided July 19, 2019

Of the lower judgment, the part of the lower judgment’s claim for land rent and damages for delay of KRW 288,711,000 after September 27, 2016 is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

For the reasons indicated in its reasoning, the lower court determined that the claim for the rent that the Plaintiff, the owner of the instant land, was finalized from February 22, 2010 to September 26, 2016, and that the Plaintiff received KRW 197,445,250 due to compulsory execution based on the judgment of the said prior suit, and that the claim for the rent that became final and conclusive in the prior suit was extinguished within the scope of KRW 197,445,250.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal principles as to res judicata and appropriation of performance, etc. as stated in the grounds of appeal.

2. Regarding ground of appeal No. 3

A. In a case where a land owner claims a rent to a statutory superficies holder, the claim for the payment of the rent can not be filed before the judgment to determine the rent cannot be filed, but the court can immediately claim the payment of the rent on the premise that the payment of the rent is to be made. In this case, if the court decides that the rent is set on the ground of the judgment to pay the rent much, the decision on the rent determined on the ground of the judgment to pay the rent has the effect of the rent decision between the land owner and the statutory superficies who are the party to the lawsuit. Meanwhile, in light of the provisions of Article 286 of the Civil Act regarding the right to claim the increase or decrease of the rent, unless there are special circumstances such as new effect of the increase or decrease of the rent under the above Civil Act, it shall be deemed that the subsequent payment of the rent for the previous period is the same as the rent for the previous period (see Supreme Court Decision 2003Da16326, Dec. 26, 2003).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) On February 22, 2010, the Plaintiff acquired the ownership of the instant land, and the Defendant, as the owner of the said ground building, acquired legal superficies on the instant land.

2) From February 22, 2010 to September 26, 2016, the Plaintiff filed a prior suit against the Defendant, and sought payment of unjust enrichment equivalent to the land rent or land rent, and the Defendant was sentenced to the payment of KRW 425,313,72 to the Plaintiff in the lawsuit.

3) In this case, the Plaintiff asserted that the Defendant did not pay the rent even after the judgment in the preceding lawsuit became final and conclusive, and filed a claim for the land rent of this case and the damages for delay of KRW 288,711,00, which is part of the land, after September 27, 2016. Accordingly, the Plaintiff claimed for the payment of the rent higher than the amount of the rent recognized in the preceding lawsuit based on the result of appraisal at the lower court, on the premise that the preceding lawsuit was against the claim for the return of unjust enrichment, and thus, the Plaintiff did not have determined the rent. In addition, the Plaintiff stated that the Plaintiff did not seek the increase of the rent on

4) The lower court, in the judgment of the appellate court in the prior suit, expressed the nature of the money that ordered the Defendant, who is a legal superficies, to pay to the Defendant, but it is reasonable to view that it refers to “land rent,” and thus, determined the land rent for the instant land from February 22, 2010 to September 26, 2016 in the prior suit, and determined that the land rent for the instant land from September 27, 2016 also was the same amount as the land rent for the previous period determined in the prior suit, and rejected Plaintiff’s claim for payment of the land rent after September 27, 2016 and damages for delay.

C. Examining the above facts in light of the legal principles as seen earlier, the Plaintiff filed a performance suit seeking the payment of the rent for the period after the period acknowledged in the judgment in the preceding lawsuit, rather than seeking the determination of the rent. Therefore, if the rent was not determined in the preceding lawsuit, the court may immediately claim the payment of the rent on the premise that the payment of the rent was determined by the court, and if the rent was determined in the preceding lawsuit, the payment of the rent determined can be claimed.

Meanwhile, in the judgment of the preceding lawsuit, there was a dispute as to whether the rent may be deemed to have been determined in the preceding lawsuit by using the expression of unjust enrichment equivalent to the rent, and thus, the Plaintiff’s claim for the rent according to the result of appraisal of the lower court in an amount larger than the amount of the rent determined in the preceding lawsuit. If the Plaintiff’s claim is determined as a result of a trial, it should be interpreted that the claim includes the purport of seeking payment for the rent within the scope of the claim amount, which is within the scope of the claim

Therefore, the court below should have deliberated on the amount of the land rent determined as the result of the hearing in the preceding lawsuit and ordered the payment of the land rent.

D. Nevertheless, the lower court rejected all of the Plaintiff’s claim for payment of rent and damages for delay on or after September 27, 2016 solely on the ground that the rent was already determined in the preceding lawsuit. In so determining, the lower court erred by misapprehending the legal doctrine on claim for payment of rent, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Conclusion

Therefore, among the judgment below, the part of the claim for land rent and damages for delay of KRW 288,711,000 after September 27, 2016 among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)