Whether statutory superficies under customary law is established, if one of the co-owners of the land who own a building above the co-owners resells only the share of the land.

Even if one of the co-owners owns a building on co-owned land, and the ground to view that the customary statutory superficies established for the ownership of the building arises, it would be unreasonable to allow one co-owner to dispose of the creation of superficies until the other co-owner's share of the co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owner's co-owned share.

Article 366 of the Civil Act

Plaintiff 1 and two others (Law Firm Lee Dong-dong, Attorneys Noh Jong-sung et al., Counsel for the plaintiff-appellant)

Defendant

Suwon District Court Decision 86Na302 delivered on August 22, 1986

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The plaintiffs' grounds of appeal are examined.

According to the reasoning of the judgment below, the court below held on April 6, 1960 that the non-party 1 was originally owned by the non-party 1. The defendant, the non-party 2,945 square meters (hereinafter referred to as the "land of this case") was to construct a new building (hereinafter referred to as the "building of this case") listed in the attached Table Nos. 1, 2, and 3 of the judgment at the time of original adjudication on the land of this case on the part of the non-party 5, and that the non-party 5 owned the land of this case on March 5, 1973 by inheritance of the non-party 2, 3, 4, and 5, the non-party 5 owned the land of this case on the land of this case on the non-party 5, including the above non-party 6's ownership by transferring their shares on the land of this case to the non-party 5, and the non-party 6's land of this case on the land of this case on the non-party 5.

However, even in cases where one of the co-owners owns a building on co-owned land and only resells the share of the co-owned land, and the ground to see that the statutory superficies under customary law has been established for the ownership of the building on the land itself, if it is considered that the statutory superficies under customary law for the ownership of the building is established on the land itself, it would be unreasonable to allow one co-owner of the land to dispose of the creation of superficies until the other co-owner's share of the co-owner's share of the land, so in such cases, the statutory superficies under customary law for the ownership of the building cannot be established on the land in question.

According to the facts established by the court below, the defendant as one of co-owners of the land of this case and owned the building of this case to the non-party 5. Thus, in light of the above opinion, the special situation at the time of original adjudication does not peep, and the defendant cannot be deemed to have acquired the legal superficies under customary law for the ownership of the building of this case on the part of the land of this case. Thus, the court below did not err in the misapprehension of legal principles as to the requirements for establishing legal superficies under customary law, which affected the conclusion of the judgment, and this constitutes the ground for reversal under Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., and therefore, the ground for appeal is justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee B-soo (Presiding Justice)