Whether a person who acquired the ownership of a building on the land after the registration of the establishment of a superficies and the right to collateral security may claim the legal superficies against the said person who acquired the ownership of the land through an auction.

In the event that Non-party Lee Young-chul, his owner of the building on April 27, 1949, constructed the Building Act on this part of this case, and according to a contract with the plaintiff and the deceased, the registration of the establishment of the right to collateral security and superficies on this land was completed on July 2, 1968, respectively, and the defendant purchased the building from the above deceased and completed the registration of preservation of ownership as of June 3, 1970, but the plaintiff acquired the ownership of the building on this case by auction, unless there are special reasons such as the plaintiff agreed that the non-party who had already existed at the time of the establishment of the right to collateral security shall remove the building on this case, and the superficies that the plaintiff had had had been the owner of the building on this case by auction was extinguished, so the defendant, the owner of the building, shall acquire the legal superficies on this case.

Article 366 of the Civil Act

Supreme Court Decision 76Da1078, 1079 Delivered on July 12, 1977

Korean Commercial Bank, Inc.

Mazil

Suwon District Court of the first instance (75 Gohap613)

Supreme Court Decision 77Da1166 Decided August 22, 1978

1. Revocation of the original judgment;

2. The plaintiff's claim is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

The defendant removes 26 4 Hobbebbes in the case of Suwon-si, Suwon-si, 224 ground trees and apapap, one house for the assessment of 1, 26 Gabbes, and deliver the site to the plaintiff.

The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution

The same shall apply to the order.

According to the evidence No. 1-1 of No. 1 of this case, the fact that the building written in the purport of the claim (hereinafter referred to as the "building") is owned by the defendant is no dispute between the parties, and according to the evidence No. 1-2 of this case, the ownership of the plaintiff was originally owned by the non-party 1-24 forest land No. 6,694 (No. 224-1, no. 6,389 on the land register) in Suwon-si, Suwon-si, which is the land on which the building was located, the land on which the building was located. The plaintiff's ownership transfer registration can be acknowledged as the plaintiff's ownership transfer registration based on the mortgage contract concluded between the plaintiff and the creditor, the maximum debt amount of 13 million won, the debtor, and the non-party 1-Jinsan Co., Ltd., Ltd., on July 27, 197.

The plaintiff's legal representative argues that the defendant without any title owned the building built on the ground of the above part of the land in question and sought removal of the building site and delivery of the building site. The defendant's legal representative asserted that the building was originally constructed on April 194 by the non-party Lee Jong-young, but he purchased 700,000 won from the Lee Jong-young on May 10, 1970 and completed registration of preservation of ownership before the defendant as of June 3, 1971. Since the plaintiff explained on February 27, 1971, the land which was the building site, and the owner of the land and the building were the owner of the building under the auction after the auction of the building site, the plaintiff's legal representative did not dispute the plaintiff's establishment of the superficies under Article 366 of the Civil Act and the plaintiff's legal representative did not have any legal right to the above land. Thus, the defendant's legal representative did not dispute the plaintiff's establishment of the superficies after the auction of the building site.

Therefore, considering the following facts: Gap evidence Nos. 1-1-6 and Eul, without dispute over the establishment of superficies No. 4-6; Eul's testimony before returning to the court of first instance; and the result of on-site inspection before returning to the above land, the plaintiff is only one building on the above land, and at the same time as the above contract to establish a superficies on June 29, 1968, the contract to establish a superficies, the entire land for the purpose of creation, the ownership of the wooden building, the entire duration of the superficies, 15 years from June 29, 1968 to June 28, 1963; the construction of superficies as the plaintiff on the above land was completed on July 2, 1968; the plaintiff's claim for the above construction of superficies No. 1-6 was justified, and according to the above evidence, the non-party building was constructed on the land before the return to the court of first instance, and the plaintiff had already been aware of the above land as the owner of superficies No. 1-67. 97.

Therefore, the plaintiff's claim for this case on the premise that the plaintiff is the owner who acquired a successful bid, without any other argument to prove the removal of the building in question and the transfer of the land in question, should be dismissed. However, since the original judgment accepted the plaintiff's claim on the grounds that it differs from the party members, the original judgment was unfair, and the defendant's appeal is justified, and the plaintiff's claim for the principal lawsuit is dismissed, and the total costs of the lawsuit are assessed against the plaintiff

Judges Lee Byung-chul (Presiding Judge)