The opposing power of the superficies transferred by auction

The successful bidder who acquired the ownership of the building by auction for the ownership of the building is also transferred the above superficies as a matter of course, and even if there is no registration of the superficies, it is valid for the person who acquired the mortgaged land thereafter.

Article 366 of the Civil Act

Supreme Court Decision 75Da2338 Delivered on May 11, 1976

[Judgment of the court below]

Attorney Yang Jong-soo, et al., Counsel for the defendant-appellant-appellee

Seoul High Court Decision 78Na2345 delivered on April 26, 1979

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the Grounds of Appeal:

Unless there are special circumstances, such as where a successful bidder, who takes over the ownership of a building by auction from a person who acquired legal superficies for the purpose of owning a false building, sells the building at auction under the conditions of sale such as the removal of the building after the successful bid, etc., he/she shall be deemed to have naturally transferred the above superficies in an indivisible relationship with the relocation of the building, and as such, even if there is no registration of the superficies transferred by auction, the subsequent purchaser of the building shall be naturally effective (see Supreme Court Decision 75Da2338, May 11, 1976).

On the other hand, considering the records of this case, the court below's decision is justified, and even if the legal relation of this case was made at the time of so-called land development recompense, the above theory does not change.

Therefore, there is no argument that the court below erred in the misapprehension of legal principles as to legal superficies or legal superficies based on custom and the acquisition by succession thereof.

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 on the bench.

Justices Ahn Byung-soo (Presiding Justice)