[1] Whether statutory superficies under the customary law does not accrue in a case where a special agreement is made between the parties to remove the building, even if the land and the building on the ground belong to the same owner, but became different from the owner due to sale and purchase or for any other reason (affirmative

[2] Whether statutory superficies is established (affirmative) and the scope of recognition in a case where a building is extended, reconstructed, destroyed, or newly constructed after removal after the statutory superficies is established under the customary law (affirmative)

[3] In a case where Party A agreed to remove a building and build a new building owned by Party A on the ground upon donation of a site to Party B, the case holding that the agreement cannot be deemed as a "special agreement for removal" excluding the creation of legal superficies under the customary law

[1] Articles 279 and 366 of the Civil Act / [2] Articles 279 and 366 of the Civil Act / [3] Articles 279 and 366 of the Civil Act

[1] Supreme Court Decision 83Meu2245 delivered on September 11, 1984 (Gong1984, 1641), Supreme Court Decision 87Meu279 delivered on September 27, 198 (Gong198, 1325) / [2] Supreme Court Decision 90Da19985 delivered on April 26, 199 (Gong1991, 1495), Supreme Court Decision 96Da40080 delivered on January 21, 1997 (Gong197, 608)

Plaintiff (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Choi Jong-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na4586, 45893 delivered on November 3, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the Plaintiff’s ground of appeal.

1. As to the violation of the rules of evidence and the mistake of facts

Examining the relevant evidence in light of the records, it is just for the court below to find that there was an agreement that Defendant 2 would remove the instant building and build a new building on the ground at the time of donation of the instant site to Defendant 1, and there is no error of law by mistake of facts due to a violation of the rules of evidence. The argument is without merit.

2. As to the misapprehension of legal principle

A. According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning based on the macroscopic evidence, and based on such facts, it is reasonable to view that there was an agreement among the defendants to remove the building in this case and to have Defendant 1 possess the building site ownership not interfered with the building in this case. Thus, Defendant 2 did not acquire the legal superficies under the customary law to use the site in this case for the existence of the building in this case, and the plaintiff cannot seek the transfer of the above legal superficies against Defendant 2. Accordingly, the court below accepted the defendants' defense and rejected the plaintiff's claim in this case.

B. Unless there is a condition that a building should be demolished when the owner of a building or a building belongs to the same owner but becomes different from one another due to sale and purchase of the building or for any other reason, the owner of the building acquires legal superficies under the customary law for the building (see, e.g., Supreme Court Decision 83Da2245, Sept. 11, 1984). If there is a special agreement between the parties to remove the building and exercise full ownership that does not obstruct the owner of the building, the statutory superficies under the customary law does not occur. Further, after the statutory superficies under the customary law is established, the statutory superficies is established not only in cases of reconstruction or extension of the building, but also in cases of new construction after the building is destroyed or demolished, the scope of the statutory superficies is limited to the part of the building site within the scope generally necessary for its maintenance or use (see, e.g., Supreme Court Decision 96Da4080, Jan. 21, 1997).

C. In addition, according to the facts duly established by the lower court, Defendant 2 agreed with Defendant 1 to remove the instant building located on the ground at the time of donation of the instant land and to construct a new building owned by Defendant 2. However, it is difficult to accept the lower court’s rejection of the occurrence of statutory superficies by deeming such agreement as a special agreement on the removal of a building, which is the passive requirement for the creation of statutory superficies under customary law, for the following reasons.

D. That is, the purport of a special contract for removal of legal superficies under the customary law is that, even if there is no such special agreement, the owner of the land and the building can continue to use the land for the purpose of the ownership of the building even after the change of the owner of the land and the building, so it is clear that there is no intention between the parties to continue to use the land for the purpose of the ownership of the building, so it is unnecessary to recognize legal superficies. However, as recognized by the court below, the agreement between the Defendants is no longer necessary to give up the ownership of the building, remove the building, and exercise the complete ownership of the site to Defendant 1, who is the owner of the building, even after the removal of the new building, and it is difficult to view that the new building is still to be removed within the new scope of the building that is the owner of the building, and even if the ownership of the building was to have been newly constructed under the existing common law, it is difficult to view that there is no new intention to remove the new building within the scope of the building, which is a new one’s own land.

E. Therefore, even if there was an agreement between the Defendants as to the establishment of legal superficies under customary law, it cannot be deemed a "special agreement on removal" which could prevent the creation of legal superficies under customary law, but the court below accepted the defendants' defense and rejected the plaintiff's claim. Thus, the court below erred in the misapprehension of legal principles as to whether legal superficies under customary law has been established. The appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo Sung-sung (Presiding Justice)