A. In a case where the ownership of a building site differs from the owner of the building site because a provisional registration for security has been made on the building site, and the owner of the building site constructed a new building on the ground, whether the statutory superficies is established for the building under customary law

(b) In the case of paragraph (a), if the principal registration has been completed during the procedure for compulsory auction of a building, whether the successful bidder of the building acquires the statutory superficies under customary law;

(c) Requirements for premise that the right of lease on a site has an opposing power under Article 622 of the Civil Act.

(d) Requirements for exercising ownership to constitute an abuse of rights;

A. In order to secure the original claim, a provisional registration has been made on the site; thereafter, the owner of the site newly constructed a building on the site; thereafter, if the principal registration based on the provisional registration has been completed and the owner of the site and the building vary, recognition of the statutory superficies would considerably harm the interests of the person who made the provisional registration on the site for the purpose of securing the claim; barring any special circumstance, it cannot be said that the statutory superficies is established on the site for the building, unless there is any special circumstance.

(b)The compulsory auction has been commenced on the building as referred to in paragraph (a) and a seizure registration has been completed, and the principal registration has been completed on the basis of provisional registration for the security of claims established on each site before the compulsory auction procedure is in progress, so the building bidder cannot be deemed to have acquired the statutory superficies in customary law for each site.

C. If Party A leased the building from Party B, who was the owner of the building site and the building, and thereafter Party A was awarded a successful bid for the compulsory auction procedure and completed the registration of ownership transfer with respect to the building under Party A’s name without registering the right to lease on the building, it is obvious that the lease contract on the building site concluded between Party A and Party B is not a land lease contract for the purpose of owning the building, and thus Party’s right to lease on the building site did not have opposing power under Article 622 of the Civil Act.

D. If a landowner’s exercise of land ownership can be deemed as an abuse of right, a subjective purpose of the exercise of right is to inflict pain on the other party and to inflict damage on the other party, and there should be no benefit to the person who exercises the right. In an objective view, the exercise of the right can be deemed as a violation of social order. Unless it does not fall under such cases, even if the other party’s loss is significantly high than the benefit the exercise of the right holder gained by the exercise of the right, such circumstance alone does not constitute abuse of right.

Article 366 (A) of the Civil Act. Article 10 of the Provisional Registration Security Act. Article 622 (d) of the Civil Act. Article 2

D. Supreme Court Decision 87Meu2911 Decided December 27, 1988 (Gong1989, 289) (Gong1989, 289) 90Da13055 Decided March 27, 1991 (Gong1991, 1261) 93Da4366 Decided May 14, 1993 (Gong193Ha, 1707)

Plaintiff

Attorney Lee Dong-sung, Counsel for defendant-appellant

Daegu High Court Decision 92Na3275 delivered on December 16, 1993

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal No. 1 are examined.

According to the reasoning of the judgment of the court below, each of the above sites listed in the separate list of the court below (hereinafter referred to as the site of this case) is owned by the plaintiff, and the defendant owns each of the above site of this case as stated in the separate list of the court below (hereinafter referred to as the building of this case) on each of the above site of this case. Each of the site of this case was originally owned by the non-party 1 and offered as security by the above non-party 1 on May 21, 1982, each of the site of this case was registered as to the non-party 2 site of this case on the non-party 3 on April 24, 1981, and each of the above sites of this case was registered for the non-party 4 of this case on the non-party 8, May 12, 1984, and the non-party 5 had already been registered for ownership transfer registration of each of the above site of this case on the non-party 1 of this case on March 26, 1985.

In order to secure the original claim, a provisional registration has been made on a site; thereafter, the site owner newly constructed a building on that ground; thereafter, if the principal registration based on the provisional registration was completed and the ownership of the site and the building changes, recognition of the statutory superficies would seriously harm the interests of the person who completed the provisional registration for securing the claim, barring any special circumstance, it cannot be said that the statutory superficies is established on the said building on the first site. Therefore, it cannot be said that Nonparty 5, who was the owner of the instant site and the building at the time of the principal registration based on the provisional registration, acquired the customary statutory superficies, barring any special circumstance.

In addition, since a compulsory auction was commenced on the building in this case and a seizure registration has been completed, and the principal registration has been completed on the basis of the above provisional registration for the security of claims established on each site in this case before the compulsory auction procedure is in progress, the defendant who is the successful bidder of the building in this case cannot be deemed to have acquired the statutory superficies under customary law for each site in this case.

In the same purport, the judgment of the court below that rejected all of the defendant's claims on legal superficies under customary law is just and acceptable, and there is no error of law by misunderstanding the legal principles on legal superficies under customary law. There is no reason to discuss this point.

The grounds of appeal No. 2 are examined.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant leased the lease deposit amounting to 50,00,000 won from the non-party 4, who was the owner of the building of this case on September 6, 1984, and the lease period was five years. The defendant, on April 25, 1986, sold the building of this case at a compulsory auction procedure and completed a registration of transfer of ownership for this case on July 3, 1987, without registering the above lease. The above lease right on each building of this case has the opposing power under Article 622 of the Civil Act, on the other hand, although the above provisional registration on each building of this case or its principal registration on each of the building of this case was completed prior to the above provisional registration or its principal registration on each of the building of this case, and therefore it cannot be asserted against the plaintiff who received the registration of transfer of ownership on each of the building of this case from the above right of lease.

However, even according to the reasons for the original adjudication, since it is apparent that the lease contract for each site of this case concluded between the defendant and the above non-party 4 is not a land lease contract for the purpose of owning a building, the right to lease by the defendant as to each site of this case shall be deemed to have failed to satisfy the opposing power under Article 622 of the Civil Act. Although the reasons are different, the decision of the court below that rejected the above argument by the defendant shall be justified, and there is no error of law by misunderstanding the legal principles as to the opposing power of the right to lease registered as a building under Article 622 of

The ground of appeal No. 3 is examined.

If a landowner intends to exercise his/her right to the land as an abuse of right, the objective of the exercise of the right is to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right, and the exercise of the right should be objectively deemed to be in violation of social order, and unless it does not fall under such cases, even if the loss of the other party is significantly high than the benefit the exercise of the right is gained by the exercise of the right, such circumstance alone does not constitute abuse of right.

According to the reasoning of the judgment below, the court below rejected the defendant's defense of abuse of rights on the ground that the plaintiff's claim in this case does not constitute an abuse of rights against the good faith principle. In light of the records, the above recognition and judgment of the court below are justified and there is no violation of the rules of evidence or misapprehension of the legal principles as to abuse of rights, which affected the conclusion of judgment

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 Jeong Jong-ho (Presiding Justice)