Relationship between the acquisition and exercise of legal superficies under customary law and the registration thereof

If the building site and its ground buildings belong to the same owner and each owner becomes different due to sale and purchase, etc., the owner of the house, unless there is an agreement to remove the building, shall acquire the legal superficies on the building site and claim it to the owner of the building even if there is no registration, but the third party who acquired the building may claim it to the owner of the building, but the third party who acquired the building can make the registration of the superficies.

Article 366 of the Civil Act

Supreme Court Decision 65Da1222 delivered on September 23, 1965 (Supreme Court Decision 1731; Article 366(9)368 of the Civil Act); 66Da987 delivered on June 27, 1967 (Supreme Court Decision 122Da122; Article 366(14)368 of the Civil Act); Supreme Court Decision 70Da729 delivered on July 24, 1970 (Supreme Court Decision 9015,9016,9017; Supreme Court Decision 18Na180; Decision 199(4)304 of the Civil Act; Civil Act, Article 366(17)369 of the Land Survey Act; Article 2 (1)180 of the Land Survey Act

Plaintiff Limited Partnership Company

Defendant 1 and five others

Seoul Central District Court (72 Gohap6537) in the first instance trial

The appeal by the defendant, etc. is dismissed.

Expenses for appeal shall be borne by the defendant, etc.

The Plaintiff

Defendant 2 removed from Han River-ro (Land Number 1 omitted) and apap appraised house of Yongsan-gu in Seoul and 16 square meters of 16 square meters of Gabbea, and ordered the site. Defendant 1, from 5 square meters of the attached drawing(A) of the above building, Defendant 3, from 2 square meters of the above part of the above building, respectively, and Defendant 3, from 2 square meters of the above drawing(B).

Defendant 4: (1) The Yongsan-gu Seoul Metropolitan Government Han River (number 2 omitted) and the apap 14 square meters and 14 square meters and 2 Hobbebbes, and ordered the site thereof; (2) the defendant 5 from the third part of the above drawings indication (g) among the above buildings; (3) the defendant 6 from the third part of the above building; and (4) from the five square meters of the above drawings indication (h) among the above buildings; and (2) the defendants shall bear the costs of lawsuit and the declaration

The original judgment is revoked, and the claims of the plaintiff, etc. are dismissed. The costs of lawsuit shall be borne by the plaintiff, etc. in both the first and second instances.

1. The reasons why a party member explains in this case are as stated in the original judgment, and the reasons why the party member added the following two paragraphs are as stated in the original judgment, and thus, all of them shall be accepted in accordance with Article 390 of the Civil Procedure Act.

2. Defendant 4 and 2, the owner of the building, who was the owner of the building, acquired superficies in order to sell the land and the building in this case separately from the non-party who was the owner of the same building. Thus, according to the evidence evidence Nos. 1, 2, and 3, the plaintiff's claim is unjustifiable and there is no dispute over the establishment. Among the land and the building to which the property to be reverted belongs, the ownership transfer registration is made in order with the name of the non-party 1 and the same plaintiff on February 18, 1954. The building Nos. 2 and the building No. 2 were transferred through the non-party 2 and the same non-party 3 on Nov. 10, 1967. The building No. 3 did not accept the registration of ownership transfer from the non-party 2 to the non-party 3 on October 23, 1967, and there is no evidence to recognize the ownership transfer registration of the building in this case to the non-party 2.

3. If so, the plaintiff's claim on the principal lawsuit is legitimate, and the original judgment is consistent with this conclusion, and the appeal by the defendant et al. is actual, so it is so decided as per Disposition by applying Articles 384, 95, 89, and 93 of the Civil Procedure Act.

Judges Jeon Soo-chul (Presiding Judge)