Scope of legal superficies recognized by custom

Legal superficies under customary law of the owner of a building shall be recognized only for a site within the scope generally deemed necessary to use the building, except in extenuating circumstances.

Article 366 of the Civil Act

Plaintiff

Defendant

Seoul High Court Decision 65Na426 delivered on August 12, 1966

We reverse the original judgment.

This case is remanded to the Seoul High Court.

As to the grounds of appeal by the Plaintiff’s attorney

Under our legal system in which land and buildings are treated as one independent real estate separately from each other, if the owner of the land and buildings belonging to the same person become different from each other due to sale and purchase, it is reasonable to interpret that the owner of the house acquires legal superficies on the land unless there is an agreement to remove them. Barring special circumstances, the legal superficies on the land for the above building is the previous precedent that the owner of the house acquires legal superficies on the land. Barring special circumstances, the legal superficies on the land for the above building are to be considered to be generally necessary to use the building within the extent of the building's scope, taking into account the structure and reputation of the building, and the objective various circumstances at the place where the building is located, and the original purpose of use of the building is to be used, the legal superficies on the land within the scope of the building's scope as seen above can not be recognized until the other part of the building's site. According to the plaintiff's reasoning, the court below rejected the plaintiff's claim that the plaintiff purchased the above building's legal superficies on the land as the owner of the above building's own land and the above.

However, as seen above, the so-called statutory superficies on the site in this case for the building as seen above should be recognized only to the site within the scope that is generally deemed necessary for the use of the building in accordance with the standards as seen above. Therefore, the court below should deliberate and determine whether the whole area of 163 square meters on the site in question belongs to the necessary scope for the use of the above building 15-9 Hobbe, but the court below did not take such measures. However, there is no error in the misapprehension of legal principles as to the scope of statutory superficies due to illegality and custom in the incomplete hearing and customs, and therefore, the judgment of the court below should be omitted, and the judgment of the other grounds for appeal shall be reversed with unjustifiable grounds for appeal.

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

The judge of the Supreme Court (Presiding Judge) of the Red Round (Presiding Judge)