(영문) 인천지방법원 2020.11.27 2019가합1967

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(영문) 인천지방법원 2020.11.27 2019가합1967

지상권부존재확인

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The instant lawsuit is dismissed.

Litigation costs shall be borne by the plaintiff.

Reasons

1. Summary of the parties' arguments

A. Plaintiff 1) On March 28, 2011, the Plaintiff’s land indicated in attached Table 1 (hereinafter “instant land”).

(C) The land of this case and the building listed in the attached Table 2 (hereinafter “instant building”) at the time of the establishment of the mortgage prior to the voluntary auction, acquired the ownership share through a voluntary auction (Seoul District Court C).

(2) Since the Plaintiff did not fall under the ownership of the same person, the legal superficies for the instant building is not established. (2) The Plaintiff sold the shares of the instant land to D, and the Plaintiff completed the registration of ownership transfer on the said land, and the Plaintiff is not currently the owner of the instant land, but if the Defendant asserts the legal superficies for the instant building, the Plaintiff may be liable to compensate for the damages incurred to D. Therefore, there is a benefit to seek confirmation of existence of the superficies, such as the written purport of the claim.

B. The lawsuit of this case must be dismissed on the grounds that the defendant is not entitled to confirmation for the following reasons.

1) On November 13, 2019, the Plaintiff traded shares in the instant land owned by the Plaintiff to D and completed the registration of ownership transfer with respect to the said shares on December 17, 2019, and D is no longer the owner of the instant land. Accordingly, D is currently in the current mooring period by filing a lawsuit against the Defendant, etc. seeking removal of the instant building on April 27, 2020, and the Defendant did not claim legal superficies against the Plaintiff or D.

2. Determination on this safety defense

A. In a lawsuit for confirmation, there must be a benefit of confirmation as a requirement for protection of a right. The benefit of confirmation is recognized only when it is the most effective means to eliminate the Plaintiff’s rights or legal status and the risk, and it is recognized that the Defendant of the lawsuit for confirmation is the most effective means to obtain a judgment against the Defendant. Therefore, the Defendant of the lawsuit for confirmation is likely to cause unstable and danger in the Plaintiff’s legal status by dispute over the Plaintiff’s rights

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