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The judgment below
The main part of the lawsuit is reversed, and that part of the case is remanded to the Seoul High Court.
Reasons
The grounds of appeal are examined.
1. Article 256 of the Civil Act provides, “The owner of an immovable shall acquire the ownership of any article attached to the immovable: Provided, That this shall not apply to the article attached by another person’s title.”
The term "right holder" as referred to in the proviso of the above Article means the right to use another person's real property by attaching his/her movable property, such as superficies, right to lease on a deposit basis, right to lease on a deposit basis, etc. Therefore, if a person without such right has planted trees on another person's land, barring any special circumstance, the owner of the land cannot claim the ownership
(See Supreme Court Decision 88Meu9067 delivered on July 11, 1989, etc.). Since a superficiary has a right to use the land of another person for the purpose of owning a building, other structure, or trees on the land of another person (Article 279 of the Civil Act). If the registration of creation of a superficies has been made, the right to use and benefit from the land is vested in the superficiary, and the owner of the land who has created the superficies cannot use
(See Supreme Court Decision 74Da1150 delivered on November 12, 1974). Therefore, even if a land owner who created a superficies acquired the right to use the land from the land owner who created the superficies, as long as the superficies exists, such right does not, in principle, constitute “right holder” as provided by the proviso of Article 256 of the Civil Act.
However, in a case where a financial institution does not exclude the right to use and benefit from the property of an obligor, etc. while establishing a superficies without rent along with a mortgage on the land for securing loan claims, such superficies is aimed at securing the collateral value of mortgaged real estate by excluding an infringement by a third party’s acquisition of the right to benefit or undermining the collateral value of the land until the mortgage is executed (see Supreme Court Decision 2006Da586, Jan. 17, 2008).