Whether a superficiary and the owner of the ground shall necessarily coincide (negative), and whether the scope of the land on which the superficies extends at the time of the establishment of superficies and the scope of the ground objects sold at the time of the establishment of superficies may vary (affirmative)

A superficiary may transfer only the ownership of the ground property without reservation of the superficies, and may transfer only the superficies without reservation of the ownership of the ground property, so it does not necessarily require the superficiary and the owner of the ground, and it is also possible to vary from the scope of the land on which the superficies extends at the time of creation of the superficies.

Article 279 of the Civil Act

Plaintiff (Attorney Kim Young-il, Counsel for the plaintiff-appellant)

Defendant clan (Attorney Yoon-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2005Na44888, 44895 decided Dec. 21, 2005

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

We examine the grounds of appeal.

A superficiary may transfer only the ownership of the ground property without reservation of superficies, and may transfer only the superficies without reservation of the ownership of the ground property, so it does not necessarily require the superficiary and the owner of the ground, and it is also possible to change the scope of the land on which the superficies extends at the time of creation of superficies and the scope of the ground property sold at the time of creation of superficies.

In the same purport, on August 25, 1973, the court below sold to Nonparty 1 trees on the ground as indicated in paragraph (1) of the annexed Table of the judgment below (hereinafter “the forest of this case”) and Paragraph (2). On the same day, it limited the number of trees actually sold upon receipt of a separate letter from Nonparty 1 to fire-prevention loss from the west of the forest of this case within its scope. On the 30th of the same month, since the registration of creation of superficies for the forest of this case was completed in the 30-year period, the scope of superficies and the scope of the land on the ground subject to sale differs from the scope of the original land subject to sale and the scope of the land on the ground, and thereafter, the remaining part of the land acquired from Nonparty 1 to Nonparty 2, which was not subject to the restriction on the ownership of the forest of this case from the misunderstanding of the judgment of the court below as to the remaining part on the ground, and thus, it still rejected the plaintiff’s right to purchase the forest of this case from Defendant 1 to the remaining part on the ground.

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 Shin Shin-chul (Presiding Justice)