1. The appeal filed by the plaintiff (Counterclaim defendant) against the main claim and the plaintiff (Counterclaim defendant) in this court.

Basic Facts

The reasoning for this part of this Court is the same as that of the judgment of the court of first instance, and thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

Plaintiff’s assertion

G At the same time when transferring the ownership of the instant land on the ground of division of property to the Plaintiff, G acquired the statutory superficies under customary law on the entire land of the instant building for the purpose of the instant building 1, and the Defendant who acquired the ownership of the instant building from G acquired the ownership of the instant building from G along with the statutory superficies under customary law on the instant land, thus, is obliged to pay the land rent to the Plaintiff, who is the land owner.

(B) If a legal superficies under customary law does not exist with respect to the land of this case, the Defendant is in possession of the entire land of this case without any title, and thus, the amount equivalent to the rent for the remaining land except for the part of the land of this case, which has already been determined by the prior judgment, should be paid as unjust enrichment or compensation for damages.

(Preliminary Grounds for Claim). The defendant asserts that the judgment of the court against res judicata of the previous final and conclusive judgment is contrary to res judicata of the previous final and conclusive judgment.

However, the previous final and conclusive judgment of this case is about the claim for restitution of unjust enrichment due to possession and use of the land of this case, while the main claim of this case is a claim for rent based on customary statutory superficies as to the whole land of this case, and since the conjunctive claim of this case is a return of unjust enrichment or a claim for damages with respect to the remaining land except the land No. 1 out of the land of this case, the plaintiff's claim cannot be deemed to conflict with the res judicata

1 The plaintiff is judged as to the main claim (on the basis of the legal superficies under customary law), and as to the entire land of this case.