Cases where there is an error of misapprehending the legal principles as to superficies;

If a building site and a ground building owned by the same person belong to another owner by a public sale, the owner of the building shall acquire superficies on the site, and if the owner of the building is changed, the person holding superficies may claim superficies against the new owner of the building site without registration of superficies, and if the building is transferred because there is no registration of superficies, it shall not be recognized that the superficies has been extinguished unless there are special circumstances.

Article 366 of the Civil Act

Supreme Court Decision 65Da1222 Decided September 23, 1965

Plaintiff

Dong Industrial Promotion Co., Ltd. and one other

Seoul High Court Decision 66Na1536 delivered on June 30, 1967, Seoul High Court Decision 66Na1536 delivered on June 30, 1967

The original judgment is reversed, and the case is remanded to the Seoul High Court.

With respect to the Plaintiff’s ground of appeal:

According to the facts established by the original judgment, as a result of a public auction conducted by the State that all the site and its ground buildings were owned by Defendant 2, in accordance with the procedures for the National Tax Collection Act, the original building site was awarded to the State on December 20, 1962 and its acquisition is registered on January 8, 1963. The main building on the ground is awarded to the Nonparty on January 14, 1963 and its acquisition is registered on February 12, 1963. The building on the ground is purchased from the State on March 27, 1965. The building was purchased from the non-party on February 13, 1963 and completed its acquisition registration, and the building was owned by the State on February 13, 1963, the building site and its ground building still owned by Defendant 2, and if it still remains owned by Defendant 2, the new owner of the superficies, such as the original judgment, shall not be deemed to have been assigned to the assignee of the superficies, unless special circumstances exist.

Under the above circumstances, Defendant 2 decided to transfer the superficies together with the building, but it is not registered as to the superficies, and it is reasonable to recognize that there was an obligatory contract to transfer the superficies again to the non-party, and that there was an obligatory contract to transfer the superficies again to the plaintiff. Thus, the plaintiff is entitled to seek implementation of the procedure for creation registration of superficies against Defendant Dongdong Industrial Co., Ltd. in accordance with the obligee's subrogation law, and for Defendant 2, the non-party (the non-party) can seek each registration of creation of superficies again to the non-party (the court of first instance). However, although Defendant 2 transferred the ownership of the building in this case to the plaintiff again, it is erroneous in the misapprehension of legal principles as to the superficies, and thus, the judgment that determined that the superficies was extinguished unless the registration of superficies was made before the status as the owner of the building as the owner of the superficies was lost is reasonable. Therefore, the appeal shall not be reversed.

Therefore, according to Article 406 of the Civil Procedure Act, it is decided as per Disposition by the assent of all participating judges.

The judges of the Supreme Court, the two judges (Presiding Judge) of the two judges of the Supreme Court and the vice versa.