(a) Whether a transferee of a building with a statutory superficies under customary law acquires legal superficies only by acquiring the ownership of the building;

(b) Whether a transferee of a building with statutory superficies under customary law is entitled to exercise the right to claim the renewal of superficies in subrogation of the former owner of the building;

A. If the owner of a building with a statutory superficies under customary law disposes of the building to a third party, it cannot be said that the owner of the building acquired the ownership of the building, unless the owner of the building has completed a registration of the statutory superficies, and thus, he/she cannot claim the superficies against the owner of the building, and the statutory superficies is still reserved against the original legal superficies.

B. In a case where the legal superficiesr transfers a building to a third party, barring any special circumstance, it shall be deemed that there was an in personam contract with the building to transfer the legal superficies together with the building, and the transferee may seek the procedure for the registration of the establishment of the legal superficies and the registration of the transfer to the owner of the land in successive subrogation of the transferor, and the landowner shall be obligated to take the procedure for the registration of the establishment of the legal superficies against the owner of the building and to take the procedure for the registration of the establishment. Therefore, even if the transferee of the building with the legal superficies did not register the legal superficies, he/she is a person who occupies and uses the land lawfully in relation to the owner of the building. Therefore, even if the transferor of the building did not register the legal superficies, he/she has the right

Article 283(1) of the Civil Act

A. Supreme Court Decision 65Da1222 delivered on September 23, 1965 (No. 18B citizen 180) 78Da529 delivered on September 9, 1980 (Gong1980, 13153). Supreme Court en banc Decision 84Da1131, 1132 delivered on April 9, 1985 (Gong1985, 721) 88Da1538 delivered on May 9, 1989 (Gong1989, 902) 91Da21701 delivered on September 24, 1991 (Gong191, 2612)

Plaintiff 1 and two others

Defendant

Suwon District Court Decision 93Na5397 delivered on July 1, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the misapprehension of the legal principle of abuse of rights

The court below's decision that the plaintiffs' claim of this case does not constitute abuse of rights is justified, and there is no error of law by misunderstanding the legal principles of abuse of rights, such as the theory of lawsuit. We are without merit.

2. Regarding the misapprehension of legal principles as to the renewal of legal superficies under customary law, since the legal superficies is the acquisition of real property rights under customary law, it can be asserted against the landowner at the time of its acquisition or a third party who acquired the ownership of the land without registration. However, if the owner of a building with the legal superficies under customary law disposes of the building to a third party, it cannot be said that the owner of the building acquired the ownership of the building without registration of the legal superficies. (See, e.g., Supreme Court Decision 65Da1222, Sept. 23, 1965; 70Da729, Jul. 24, 1970). Since the legal superficies still remains reserved against the original legal superficies, the judgment of the court below that the transfer of the legal superficies cannot be viewed to have been made in an indivisible relation between the owner of the building and the transferee of the building without registration of the land. (See Supreme Court Decision 78Da529, Sep. 9, 1980).

In the event that legal superficies transfer a building to a third party, barring any special circumstance, the legal superficies is to be transferred along with the building, and the transferee of the building can seek implementation of the procedure for the establishment of legal superficies and the registration of transfer from the owner of the land in successive subrogation of the transferor of the building, and the landowner is obligated to pay the burden of legal superficies to the owner of the building and to implement the procedure for the establishment registration thereof (see, e.g., Supreme Court Decision 80Da2873, Sept. 8, 1981; Supreme Court Decision 84Da1131,1132, Apr. 9, 198; Supreme Court Decision 91Da21701, Sept. 24, 191; Supreme Court Decision 91Da21701, Sept. 24, 199), even if the transferee of the building exercises the legal superficies, the transferee of the building can not claim renewal of the legal superficies from the owner of the building within the expiration of the period of validity.

In addition, even if the defendant paid rent after the termination of legal superficies as in the theory of the lawsuit, it is justified in the conclusion that the defendant cannot assert an implied renewal of legal superficies, as in the case of superficies, since implied renewal is not recognized unlike in the case of lease or chonsegwon (see Articles 312(4) and 639 of the Civil Act).

In addition, the issue is that the defendant's act of paying rent, such as theory, on behalf of the purchaser of superficies or by the defendant's own right, shall be deemed to have concluded a superficies renewal contract with the plaintiffs who are the land owners. However, the payment of land rent without the consent to the renewal of superficies cannot be deemed to have concluded a superficies renewal contract. Therefore, the argument is without merit.

3. As to the misapprehension of legal principles as to the formation of lease

According to the records, the fact-finding and decision of the court below as to the point of view of the theory of lawsuit is justified in light of the relation of evidence as stated by the court below, and there is no error of law such as misunderstanding of legal principles as to the formation of lease, error of interpretation of legal act between the parties, and incomplete hearing, etc. In the process of

4. As to the violation of the rules of evidence as to the housing market price:

According to the records, the fact-finding and decision of the court below on the market price of the housing owned by the defendant is justified in light of the time-limit relationship, and there is no violation of the rules of evidence or incomplete trial as to the fact-finding and decision of the court below on the market price of the housing owned by the defendant, even though the plaintiff requested the purchase of the housing of this case to the defendant in reality, such as the theory of lawsuit, but the defendant did not comply with the request, but there is a circumstance that the court below did not comply with the request, but there is no violation of the rules of evidence or incomplete trial.

There is no reason to discuss this issue.

5. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)