In cases where a joint mortgage has been established on land and buildings owned by the same person and a new building has been removed and another building has been newly constructed, whether statutory superficies under Article 366 of the Civil Act is established if the land and new building belong to the different owners due to the auction of mortgaged objects (negative)

[1] Article 366 of the Civil Code

Supreme Court en banc Decision 98Da43601 delivered on December 18, 2003 (Gong2004Sang, 134)

Jin Charter (Attorney Park Young-young, Counsel for the plaintiff-appellant)

Kim Crop et al.

Supreme Court Decision 200Da48517, 48524, 48531 Delivered on March 13, 2001

Seoul High Court Decision 2001Na18058, 18065, 18072 delivered on November 21, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The court below concluded a sales contract with the purport that all of the land of this case and the previous buildings of this case were owned by non-party new, but the registration of ownership transfer was completed on May 25, 1990 with respect to the land of this case and the previous buildings of this case, and that the plaintiff (non-party 2; hereinafter referred to as "the plaintiff") purchased the land of this case from new on June 12, 1991 and constructed and completed the building of this case on the ground of multi-household 90 million won and purchased the land of this case on the ground of this case at a price of 90 million won and multi-household 1 on August 29 of the same year, and obtained a new construction permit with the owner of this case on or around August 29 of the same year, the court below confirmed that the plaintiff was entitled to ownership transfer from the Seoul High Court on January 20, 1998 and confirmed that the plaintiff was still subject to registration of ownership transfer by non-party 2 of this case's auction (excluding the plaintiff's right of this case's auction).

In a case where a joint mortgage has been created on the land and buildings owned by the same person and a new building has been removed, and a new building has been newly constructed, barring special circumstances, such as where the owner of the new building is identical to the owner of the land and the mortgagee of the land establishes a joint mortgage at the same order of priority as the mortgage on the land for the new building, the statutory superficies for the new building shall not be established even if the land and the new building belong to another owner due to the auction of the mortgaged property (see Supreme Court en banc Decision 98Da43601 delivered on December 18, 2003).

However, the court below determined that the court below erred in the misapprehension of legal principles on the ground that the plaintiff did not acquire legal superficies under the premise that the ownership of the building site and the building site is identical or identical to the new building in the above site when the ownership of the building site is changed due to the successful bid of the building site after the establishment of a collateral security right on the building site belonging to the same owner and the building constructed a new building after the establishment of the collateral security right against the plaintiff, who is the co-owner of the building of this case, had no evidence to determine the scope of the use of the essential part of the previous building as stated in the judgment in this case, and there was no other circumstance that the scope of use of the building of this case belongs to the necessary scope for the use of the previous building of this case. Thus, the court below did not err in the misapprehension of legal principles on the premise that the plaintiff did not acquire legal superficies under the premise that the court below did not have any influence on the conclusion of the judgment.

2. Regarding ground of appeal No. 2

The court below's decision is justified in holding that the request for removal of the building of this case filed by Defendant Park Jong-man, a co-owner of the land of this case, does not conflict with the interests of other co-owners, Kim Jong-chul and Kim Jong-Gyeong-Gyeong, etc., even though the co-owner of the land of this case purchased and possessed 301, 403 among the building of this case, which is a multi-household house from the plaintiff before remanding the land of this case, and there is no error of law by misunderstanding the legal principles as to the act of preservation of the jointly owned property as alleged in the ground of appeal No. 2. The Supreme Court

3. The Plaintiff filed an appeal against the Defendants other than Defendant Park Jong-man, but there is no allegation in the grounds of appeal.

4. 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.

Justices Cho Cho-Un (Presiding Justice)