Whether a successful bidder who acquired the ownership of a building by auction from a person who acquired the legal superficies acquires the legal superficies (affirmative)

A successful bidder who takes over the ownership of a building by auction from a person who acquired legal superficies for the ownership of the building shall naturally acquire the above superficies with the successful bidder of the building, except in extenuating circumstances, such as where the successful bidder is auctioned under the conditions of sale such as removing the building after the successful bid.

Article 366 of the Civil Act

Supreme Court Decision 75Da2338 delivered on May 11, 1976, 79Da1087 Delivered on August 28, 1979

Plaintiff (Counter-Defendant), Attorneys Yoon-hee et al., Counsel for the plaintiff-Counterclaim defendant)

Defendant (Counterclaim Plaintiff)

Seoul High Court Decision 83Na4147, 4148 decided June 13, 1984

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

According to the reasoning of the judgment below, the court below comprehensively adopted the evidence and found that all the building site and ground buildings of this case were owned by the non-party. The above non-party acquired legal superficies in relation to the plaintiff who is the site owner under Article 366 of the Civil Act, and rejected the plaintiff's main claim seeking removal of the building site based on the ownership of this case, while the building of this case was sold to the plaintiff and completed the registration of ownership transfer on November 12, 1981. Meanwhile, the building of this case was sold to the plaintiff through the collective security execution of the above Japanese bank. Meanwhile, since the building of this case was owned by the same person at the time of the above collective security execution of the above Japanese bank, the ownership of the building of this case was owned by the non-party and thereafter the owner was changed due to the auction of the building, the defendant who acquired the ownership was entitled to acquire legal superficies in relation to the plaintiff who is the site owner under Article 366 of the Civil Act.

However, according to the evidence adopted by the court below, the non-party purchased the site and building of this case and completed the registration of ownership transfer in its name on August 1, 1978 of the same year. However, since the land was unregistered at the time and completed the registration of ownership transfer in its name on November 6, 1981, since it was recognized that the land was unregistered at the time and completed the registration of ownership transfer in its name, the ownership of real estate is registered only under the current Civil Act adopting the formative principle as to the change in real rights. Thus, the non-party acquired the ownership of the building at the time of November 22, 1978, which was the time of the registration of ownership transfer, but it is obvious that the land was not yet acquired the ownership of the building at that time. Thus, the court below recognized the establishment of legal superficies under Article 366 of the Civil Act on the premise that it was owned by the same person. Thus, the court below erred by misapprehending the legal principles as to the change in real property rights or the legal superficies.

However, if the owners of the building site and its ground buildings belonging to the same owner are different from each other by sale, the owner of the building acquires legal superficies on the building site unless there is a condition to remove the building, and on the other hand, the successful bidder who acquired legal superficies from the person who acquired the building for the purpose of owning the building by auction is at auction under the condition of sale such as the removal of the building after the successful bid, and on the other hand, the above superficies should be acquired as a matter of course (see Supreme Court Decision 79Da1087 delivered on August 28, 1979). According to the above facts and the facts established by the court below, the above land and the building were owned by the same person as the above non-party at the time of November 6, 1981, and the plaintiff acquired the above legal superficies under the condition that the ownership of the building was removed by auction, and on the other hand, the defendant acquired the above legal superficies under the condition that the above building site and the building were acquired by the non-party 1, 1982.

In the end, the issue is 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 O Sung-sung (Presiding Justice)