[1] Whether the effect of a mortgage on a building also affects superficies for the purpose of owning the building (affirmative), and whether the superficies is also transferred at the time of transferring the building (affirmative)

[2] In a case where an agreement on the rent is not registered, whether a landowner may oppose the assignee of the superficies against the fact of the delay of the former superficies (negative)

[3] Whether a landowner may claim the termination of a superficies on the ground of delay in payment of rent for at least two years in cases where the land rents are not determined (negative)

[1] In light of the main sentence of Article 358 of the Civil Act that the effect of a mortgage on a building extends to the things attached to the mortgaged real estate and the superficies for the ownership of the building which are subordinate rights to the building, barring special circumstances, such as where the successful bidder acquired the ownership of the building by enforcing a mortgage on the building, the successful bidder naturally acquires the superficies for the ownership of the building without registration pursuant to Article 187 of the Civil Act, and in this case, if the successful bidder transfers the building to a third party, it shall be deemed that he/she transferred the superficies for the ownership of the building along with the building by analogical application of Article 100(2) of the Civil Act, barring special circumstances.

[2] Since an agreement on the land rent, such as the amount of the land rent and the time for payment thereof, can only be registered and set up against a third party, unless the land rent is registered, the landowner cannot set up against the transferee of the superficies on the ground of the fact of the delay of the former superficies.

[3] In the case of statutory superficies under the proviso of Article 366 of the Civil Code, the land rent shall be decided by the parties' agreement or the court. If there is no proof that there was an agreement between the parties about the land rent or there was no determination of the land rent by the court, and there is no determination of the land rent for the legal superficies, the land owner's claim for the termination of the superficies that the land owner did not pay the land rent for more than two years is not reasonable, even if the land developer did not pay the land rent.

[1] Articles 100(2), 187, 279, 358, 366, and 371 of the Civil Act / [2] Article 136 of the Registration of Real Estate Act, Articles 186, and 366 of the Civil Act / [3] Articles 287 and 366 of the Civil Act

[1] Supreme Court Decision 84Meu1578, 1579 decided Feb. 26, 1985 (Gong1985, 469), Supreme Court Decision 92Da527 decided Jul. 14, 1992 (Gong1992, 2391), Supreme Court Decision 92Da24950 decided Apr. 13, 1993 (Gong1993, 1379), Supreme Court Decision 94Da12722 decided Aug. 22, 1995 (Gong195Ha, 3232) / [3] Supreme Court Decision 93Da52977 decided Dec. 2, 1994 (Gong195, 424)

Plaintiff

Defendant 1 and two others (Attorney Il-soo, Counsel for the defendant-appellant)

Jeonju District Court Decision 94Na6003 delivered on October 26, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The plaintiff's grounds of appeal are examined.

1. On the first ground for appeal

In light of the main sentence of Article 358 of the Civil Act, which states that a mortgage on a building extends to an article attached to the mortgaged real estate and a superficies for the ownership of the building, the effect of the mortgage on the building extends to the superficies for the ownership of the building, so barring special circumstances, such as where the successful bidder acquired the ownership of the building after the successful bid, the successful bidder naturally acquires the superficies for the ownership of the building without registration pursuant to Article 187 of the Civil Act, barring any special circumstances, such as where the successful bidder acquired the ownership of the building after the successful bid, and on the other hand, when the successful bidder transfers the building to a third party, it is reasonable to deem that the successful bidder, along with the building, assigned the superficies for the ownership of the building by applying mutatis mutandis Article 100 (2) of the Civil Act, barring special circumstances (see, e.g., Supreme Court Decisions 92Da527, Jul. 14, 1992; 84Meu1578, Feb. 26, 1985).

In light of the records, it can be known that the plaintiff, a landowner, did not prove the above special circumstances. Thus, in the auction procedure based on mortgage, the non-party 1, who was awarded a successful bid for the second floor of the building of this case, acquired without registering the legal superficies for the purpose of owning the building, which is not only the above building, but also the subordinate right to it. Further, the judgment of the court below that the non-party 1 purchased the above building from the above non-party 1, who acquired the above legal superficies as well as the above legal superficies, is just, and there is no error of law such as misunderstanding of legal principles as to the superficies, omission of judgment, contradiction in the reasoning, and incomplete hearing. All arguments are without merit.

2. On the second ground for appeal

An agreement on the land rent, such as the amount of the land rent or the time for payment thereof, can only be registered and set up against a third party (Article 136 of the Registration of Real Estate Act), so unless the registration of the land rent has been made, the landowner may not set up against the transferee of the superficies on the ground of the fact of the delay of the former superficies.

On the other hand, a successor after the closing of argument refers to a person who succeeds to the rights and duties which are the subject matter of a lawsuit from the parties or succeeds to the standing of the parties to the dispute after the closing of argument. Accordingly, the claim for rent filed by the plaintiff against the non-party 2 who originally acquired the legal superficies of this case becomes final and conclusive in favor of the plaintiff, and even if the above non-party 1 succeeded to the legal superficies after the closing of argument, the above non-party 1 did not succeed to the claim for rent, which is the subject matter of the above claim for rent, and the above non-party 1 does not belong to the person who succeeded to the standing of the parties to the dispute over the above claim for rent, and thus the above non-party 1 and the defendant 1 do not belong to the successor after the closing of argument

The judgment of the court below that held that the above non-party 1 and the defendant 1 did not succeed to the non-party 2's late payment penalty obligation is justifiable, and there is no error of law by misunderstanding legal principles as to superficies and good faith, such as theory of lawsuit, or by inconsistent reasoning, and since the above non-party 1 and the defendant 1 do not belong to the successor after the closing of argument, it does not affect the conclusion of the judgment. All arguments are without merit.

3. On the third ground for appeal

However, the above non-party 1 bears the obligation to pay the land rent to the plaintiff after the legal superficies of this case acquired by succession, but in the case of legal superficies under the proviso of Article 366 of the Civil Act, the land rent shall be decided by consultation between the parties or a court. However, there is no evidence that there was an agreement between the plaintiff and the non-party 1 about the land rent or that the land rent was decided by the court. If the land rent for the legal superficies of this case was not determined, it cannot be deemed that the payment of the land rent was delayed even if the legal superficies did not pay the land rent for more than two years. Thus, the land owner's claim for the termination of the superficies for the reason that the legal superficies of this case did not pay the land rent for more than two years is a view of the party member (see Supreme Court Decision 93Da5297 delivered on December 2, 194).

In addition, even though the plaintiff filed a claim for the termination of superficies against the defendant 1, the above defendant is not a person with superficies, so the claim for extinguishment against the defendant 1 does not affect the above non-party 1's right to transfer superficies and the above defendant's right to transfer superficies, and there is no evidence to acknowledge the plaintiff's claim for the termination of superficies against the non-party

After all, the judgment of the court below that the legal superficies of this case was not extinguished is just and acceptable, and there is no error of law such as misunderstanding of legal principles or misunderstanding of reasoning, such as theory of legal action. All arguments are without merit.

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

Justices Chocheon-sung (Presiding Justice)