Whether a successful bidder of a building with statutory superficies under customary law can oppose against a subsequent purchaser of the land.

A successful bidder of a building with a statutory superficies under customary law shall be deemed to have acquired the superficies as a matter of course with the successful bidder of the building, unless there are special circumstances, such as where the building was sold under the conditions of sale such as removing the building after the successful bid at the time of auction, and thus the superficies can be set up against the person who acquired the ownership of the superficies

Articles 279 and 366 of the Civil Act

Supreme Court en banc Decision 84Meu1131, 1132 Decided April 9, 1985 (Gong1985, 469) (Gong1985, 721) Decided 84∑158, 1579 Decided February 26, 1985 (Gong1988, 1325) (Gong198, 1325)

Plaintiff’s Attorney Noh Jae-il

Defendant 1 and 4 Defendants, et al., Counsel for the defendant-appellant-appellee

Seoul High Court Decision 90Na10485 delivered on October 24, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the Plaintiff’s ground of appeal

The court below recognized that the land and the building in this case were owned by Nonparty 1, and the ownership transfer registration was completed in the name of Nonparty 2 and Nonparty 3 on August 8, 1972 due to the execution of the right to collateral transfer on the above land among them. Since the land and the building in this case were different owners, the above non-party 1 acquired the statutory superficies for the above building on May 22, 1987, and the defendants acquired the ownership transfer registration upon the successful bid of the above building on May 22, 1987, under the sale conditions such as removal of the above building after the successful bid at auction, barring any special circumstances such as where the above superficies was acquired as a matter of course with the successful bid of the above building. Thus, the defendants can oppose the plaintiff who acquired the ownership on the land in this case by the above superficies.

The above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the acquisition by succession of legal superficies due to the rules of evidence, incomplete deliberation, or custom, such as the theory of lawsuit.

The precedent cited by the theory is not appropriate in this case. The argument is groundless.

For these reasons, 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 Kim Sang-won (Presiding Justice)