(a) The case holding that if a party to a lawsuit has made an obvious assertion and proved that he/she has proved that he/she has failed to exercise his/her right of explanation or failed to exhaust all necessary deliberations on the ground that the court below did not have any evidence;

(b) Where superficies are created to secure the right to cut standing timber, whether superficies are extinguished if the right to cut timber has ceased (negative) and the transferability of superficies;

A. The case holding that if a party to a lawsuit clearly asserts that he succeeded to the status of the party to a superficies contract and proves that he/she did not exercise his/her right of explanation or failed to exhaust all necessary deliberations as to whether he/she succeeded to the status of the party to the superficies contract, the court shall not be deemed to have committed an unlawful act of failing to exercise his/her right of explanation or failing to exhaust all necessary deliberations as to whether he/she succeeded to the status of the party.

B. Even if superficies have been created to secure the right to cut standing timber, it is not recognized that the superficies is not extinguished even if the right to cut timber has ceased to exist, and superficies can be transferred as an independent real right without being attached to any other right. The transferability is absolutely guaranteed by Articles 282 and 289 of the Civil Act, and thus, can be freely transferred to another person against the owner’s will.

(a) Articles 126, 183, 279, 282, and 289 of the Civil Procedure Act;

A. Supreme Court Decision 89Meu6638 delivered on April 27, 1990 (Gong1990, 1154) 90Nu5047 delivered on April 23, 1991 (Gong1991, 1529) 91Da8227 delivered on November 12, 1991

Park Jong-ho

New Country of Origin

Chuncheon District Court Decision 90Na2295 delivered on October 19, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

As to the Grounds of Appeal

1. The issue is that the court below's decision that there was no evidence without exercising the right to ask for explanation as to whether the status of the non-party who is the party to the contract of the superficies of this case was succeeded to by the defendant and the registration of transfer of the superficies of this case was completed without examining whether the status was succeeded to or not. However, the court below's decision that there was no evidence is erroneous in the misapprehension of the right to ask for explanation only when it is evident that the party's failure to prove due to negligence or misunderstanding was not proved due to the fact that the status of the non-party who is the party to the contract of this case was proved to have succeeded to the status of the non-party who is the party to the contract of the superficies of this case. However, in the case of this case where the court proves that the defendant's failure to exercise the right to ask for explanation against the plaintiff or failed to exhaust all necessary deliberations as to whether the status

2. Since the registration of creation of superficies of this case was completed to secure the deforestation of trees on the ground during the period of deforestation, the person holding superficies concurrently holds the right to the superficies, and the defendant transferred the registration of creation of superficies of this case is the party to the contract of this case and succeeded to the status of the said new loan, the defendant must cancel the above superficies after the expiration of the period of deforestation. If the defendant did not succeed to the status of the said new loan, the registration of creation of superficies of this case should be cancelled as a matter of course because the conclusion of the contract of creation of superficies of this case was not made between the plaintiff and the defendant, even if the defendant did not succeed to the status of the new loan, and therefore the registration of creation of superficies of this case should be cancelled as a matter of course because there was no ground

However, in order to secure the right to cut standing timber for convenience, superficies may be established on the forest and land in question, and if there is a legal ground during the duration of superficies, the superficies may be extinguished by the exercise of the right to cancel the contract or the right to cancel the contract, which has been reserved by the lender, in order to secure the right to cut standing timber. However, even if superficies were established to secure the right to cut standing trees, the superficies is not extinguished even if the right to cut standing is not recognized, and even if superficies was extinguished, superficies may be transferred as an independent right without being divided into other rights, and its transfer is absolutely guaranteed by Articles 282 and 289 of the Civil Act, so that it may be freely transferred to another person against the owner's will, and there is no reason to criticize the judgment of the court below from the opposite point of view.

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.

Justices Kim Sang-won (Presiding Justice)