In case where a mortgage is established prior to the seizure for compulsory auction or provisional seizure prior to the seizure or seizure of the land or building which has become the object of compulsory auction, the standard time to determine whether the land and the building on the ground belong to the same person, which is the requisite for establishing legal superficies under customary law for owning a building (=at the time of establishing a mortgage)

Where ownership of land or a building on the ground is transferred to a purchaser in the procedure due to a compulsory auction, not to pay in full the sale price acquired by the purchaser, but to decide whether to establish legal superficies under customary law depending on whether the land and a building on the ground belong to the same person at the time of seizure due to the compulsory auction commencement order. In cases where a provisional seizure is conducted as a result of the compulsory auction commencement order and the provisional seizure is conducted as a result of the compulsory auction order, it shall be determined whether to establish legal superficies under customary law depending on whether the land and a building on the ground belong to the same person at the time of the initial provisional seizure order, as at the time when the provisional seizure becomes effective. Furthermore, where a mortgage is established prior to the seizure for a compulsory auction or provisional seizure for a compulsory auction, or a building on the land or the building on the land which were the object of the compulsory auction, and thereafter such mortgage becomes extinct due to a compulsory auction, if it is determined whether the land and a building on the ground belong to the same person as at the time of establishment of mortgage after the establishment of mortgage, it shall be determined as at the time of mortgage at the land or building on the ground which it had not acquired any value.

Articles 279 and 366 of the Civil Act

Supreme Court en banc Decision 2010Da52140 Decided October 18, 2012 (Gong2012Ha, 1877)

Plaintiff

Defendant 1 and six others (Attorney Lee Jae-sung, Counsel for the defendant-appellant)

Seoul Northern District Court Decision 2008Na5972 decided July 15, 2009

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

In full view of the admitted evidence, the lower court recognized that Nonparty 1 constructed a building on the ground of the land listed in paragraph (1) of the attached Table No. 1 of the lower judgment (hereinafter “instant land”) and the part of the building listed in paragraph (14) of the attached Table No. 14 of the same Table of the same Table (hereinafter “the building of this case 10 through 13 and the part of the building of this case”) on one’s own effort and material, and determined that Nonparty 1, who constructed the said building, acquired the ownership of the said building upon the original acquisition of the ownership. In light of the records, the lower court’s fact-finding and determination are justified, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent

2. As to grounds of appeal Nos. 2, 3, and 4

A. The part on Defendant 1, 2, 3, 6, 5, and 7

If the owners of both land and buildings belonging to the same person become different due to sale, donation, compulsory sale by official auction, public sale under the National Tax Collection Act, etc., the owners of the buildings shall acquire the customary statutory superficies for the ownership of the building against the land owner unless otherwise stipulated that the owners of the buildings remove the building. In order to establish the customary statutory superficies, it is sufficient that the same person owned the land and buildings at the time when the ownership of the land or buildings on the ground changes effectively.

Meanwhile, in cases where ownership of land or a building on the ground is transferred to a purchaser in the procedure due to a compulsory auction, whether the purchaser belongs to the same person and whether the land and the building on the ground belong to the same person at the time of seizure due to the compulsory auction commencement order, not to pay in full the sale price acquired by ownership, shall be examined. In cases where the provisional seizure is conducted as a result of the compulsory auction order and the provisional seizure is conducted as a result of the compulsory auction order and the auction procedure is under way, it shall be determined whether the land and the building on the ground belong to the same person (see Supreme Court en banc Decision 2010Da52140, Oct. 18, 2012, etc.).

Furthermore, in the event that a mortgage is established prior to the compulsory auction for a compulsory auction or the provisional seizure prior to the seizure of the land or building that has become the object of the compulsory auction, and the mortgage is extinguished due to the compulsory auction thereafter, if the mortgage is determined as to whether the land and the building on the ground belong to the same person at a specific point after the establishment of the mortgage, the mortgagee shall obtain or incur unexpected damages to the owner of the land or the building on the ground after the establishment of the mortgage, even though the value of the mortgage was assessed as at the time of the creation of the mortgage, due to the unexpected circumstances outside the country where the owner of the land or the building on the ground has changed after the creation of the mortgage, which would be unreasonable or lower than that initially known to him. Therefore, the establishment of the statutory superficies should be determined depending on whether the land and the building on the ground belong to the same person as at the time of the establishment of the mortgage.

(7) According to the reasoning of the judgment below and evidence duly admitted and examined the non-party 2, the non-party 1 and the non-party 2 were to purchase the above non-party 1 and to purchase the non-party 2's multi-household house on June 203. The non-party 1 and the non-party 2 were to purchase the above non-party 1 and to purchase the non-party 2's multi-household house on the land of this case. The non-party 1 and the non-party 2 were to purchase the above non-party 1 and to purchase the non-party 2's multi-household house on September 8, 2003. The non-party 1 and the non-party 2 were to purchase the above non-party 2's non-party 4 and to purchase the above non-party 2's non-party 1 and the non-party 2 were to purchase the above non-party 2's non-party 1 and the non-party 1 and the non-party 2 were to purchase permit of this case.

In light of the above legal principles, prior to the decision of compulsory commencement of construction of this case on the land of this case, the land of this case and buildings of this case were established as a customary superficies for buildings of this case 10 to 13 at the time of the establishment of the mortgage. At the time of the establishment of the mortgage on this case's land, the building was developed to the extent that the building could be expected to form the size and type of the building on the land of this case by Nonparty 1, the land owner at the time of the establishment of the mortgage on this case's land. Since the auction procedure had met the building requirements as independent real estate around October 2004, before the plaintiff paid the purchase price in full, it is reasonable to view that all of the land of this case and the buildings of this case were owned by Nonparty 1 from the time of the establishment of mortgage on this case's land belongs to the ownership of the non-party 1. Accordingly, since the customary superficies is established under the customary superficies for buildings of this case constructed at the time of the establishment of mortgage on this case's land.

Therefore, Defendant 1, 2, 6, 5, 7, etc. who was in the position of the Plaintiff to seek the implementation of the procedure for the registration of the creation of statutory superficies under customary law from Nonparty 1 who acquired statutory superficies under customary law on the instant land, and sought removal of the instant land building owned by the Plaintiff against Defendant 3, who is the legal superficies under customary law, cannot be permitted under the principle of good faith.

B. The part against Defendant 4

Defendant 4’s assertion purported that, by acquiring legal superficies or statutory superficies under Article 366 of the Civil Act from Nonparty 1, the Plaintiff’s claim was contrary to the principle of trust and good faith because the Plaintiff acquired them by acquiring the instant building 10 on March 21, 2004 from Nonparty 1. In light of the above facts, Nonparty 1 cannot acquire the above legal superficies for the ownership of the instant building on March 21, 2004, when the building on the ground of the instant land satisfies the building requirements as an independent real estate. Thus, it cannot be deemed that Defendant 4 acquired the legal superficies as alleged above from Nonparty 1. However, as seen earlier, even if Nonparty 5, the father of Defendant 6, 1,2,5,7 and Defendant 4 did not own shares among the instant building 10, and as seen earlier, the Plaintiff did not request the removal of the instant land and the removal of the ownership of the instant building by the Plaintiff, the owner of the instant land, not the owner of the said land.

3. Conclusion

Therefore, the court below's rejection of the plaintiff's claim is just, and there is no error in the misapprehension of legal principles of customary statutory superficies as alleged in the ground of appeal, which affected the conclusion of the judgment.

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 Kim Shin (Presiding Justice)