Plaintiff

Defendant

Gwangju District Court Decision 2008Gadan6264 Decided January 22, 2010

May 6, 2010

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant removes the buildings indicated in the attached Form to the plaintiff and deliver the land to the plaintiff.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each entry in the evidence No. 1-1 and No. 2.

A. On June 13, 2005, the Plaintiff purchased approximately 391m2 (hereinafter “instant land”) from Nonparty 1 and Nonparty 2, Jeonnam-gun (hereinafter omitted) and completed the registration of ownership transfer in the name of the Plaintiff on November 30, 2005.

B. Meanwhile, on January 3, 2003 with respect to the building on the instant land (hereinafter “instant building”), the registration of preservation of ownership of Nonparty 3 was completed on October 20, 2003, the registration of provisional seizure by an agricultural cooperative, which is the creditor of Nonparty 3, on October 20, 2003, and on September 18, 2004, the registration of the decision to commence compulsory sale based on the above provisional seizure was completed on September 18, 2004.

C. On November 29, 2005, when the procedure for compulsory auction of this case was in progress, the Plaintiff purchased the building of this case from Nonparty 3 and completed the registration of ownership transfer on December 12, 2005. However, on June 9, 2006, the building of this case was sold to the Defendant on June 9, 2006, and at the same time the Plaintiff’s above registration of ownership transfer was cancelled on June 15, 2006.

2. The allegations by the parties and the determination thereof

A. Summary of the plaintiff and the defendant's assertion

The plaintiff asserts that the defendant acquired the ownership of the building of this case and occupied without title the part of the site owned by the plaintiff, so the defendant is obligated to remove the building of this case and deliver the site to the plaintiff. Accordingly, the defendant asserts that all of the land and buildings of this case were owned by the plaintiff, and each owner is different by acquiring the ownership of the building of this case in the process of compulsory auction, so the defendant acquired the legal superficies under the customary law, and therefore the defendant has a legitimate right to possess the site of this case.

B. Determination

(1) In a case where the land belonging to the same owner and the building above the land become different owners due to sale and purchase, unless there is a condition to remove the building, the owner of the building shall acquire customary statutory superficies on the land, and even in the case of compulsory sale by official auction, it does not require that the land and the building continue to be the owner during the period from the time of seizure for compulsory auction (or from the time of provisional seizure in case of provisional seizure prior to the seizure) to the time of the auction, and it is sufficient if the land and the building on the land belong to the same owner at the time of the successful auction (see Supreme Court Decisions 70Da1454 delivered on September 29, 197, Supreme Court Decisions 95Da9075 delivered on July 28, 195, etc.). According to the above facts, according to the above facts, the owner of the building in this case was entitled to have the ownership of the building in this case and the building in this case, which was the owner of the land in this case, which had been registered as the owner of the land in this case.

(2) Therefore, the Plaintiff’s assertion based on the premise that the Defendant, as the owner of the instant building, occupies the site without title is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

[Attachment]

Judges Park Byung-il (Presiding Judge)