[1] Whether statutory superficies under Article 366 of the Civil Code is established in a case where a unregistered building was purchased along with the building site, but the registration of ownership transfer was completed only on the building site, and a mortgage was exercised after the mortgage was created on the building site (negative)

[2] In a case where an unregistered building was sold along with the site, but the buyer's ownership transfer registration has been made only on the site, whether the statutory superficies under customary law is established (negative)

[1] The statutory superficies under Article 366 of the Civil Act is acknowledged to be owned by a building in cases where land and a building owned by the same person belong to the ownership of another person by auction by the execution of a mortgage, and thus, if a person who purchased unregistered building on the building site has received the registration of ownership transfer only for the building site, and the building has not been registered. However, in cases where a mortgage was established on the building site and the building site becomes owned by another person by auction due to the execution of the mortgage, if the building site and the building are already owned by another person at the time of the establishment of the mortgage, so there is no room to establish the statutory superficies because the building site and the building are owned

[2] Customary statutory superficies is a different owner of land and its ground buildings owned by the same person for sale, purchase, or any other reason, but it is recognized that allowing the owner of the building to continue to use the land unless otherwise stipulated, such as that it would be the intention of the party concerned. Therefore, if it is deemed that there exists an agreement between the parties concerned as to the possession and use of the land or that the landowner concurrently acquired the right to dispose of the building, there is no reason to recognize the statutory superficies under customary law. Thus, if the unregistered building was sold along with the building site, even if the ownership transfer registration was made only on the building site, and the building site and the building were formally owned by the owner, the seller has no reason to recognize the statutory superficies under customary law.

[1] Article 366 of the Civil Code / [2] Article 366 of the Civil Code

[1] Supreme Court Decision 87Meu869 delivered on December 8, 1987 (Gong1988, 168), Supreme Court Decision 88Meu2592 delivered on February 14, 1989 (Gong1989, 418), Supreme Court Decision 91Da16730 delivered on August 27, 1991 (Gong1991, 2430) / [2] Supreme Court Decision 72Da1515 delivered on October 31, 197 (overruled), Supreme Court Decision 87Da634 delivered on July 7, 1987 (Gong1987, 1320), Supreme Court Decision 91Da40610 delivered on April 10, 1992 (Gong1992, 198, 498Da483989, Apr. 198, 199)

Plaintiff (Attorney Lee Dong-soo, Counsel for plaintiff-appellant)

Defendant (Attorney Cho Dong-dong et al., Counsel for the defendant-appellant)

Seoul District Court Decision 2001Na36992 delivered on January 11, 2002

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

1. Legal superficies under Article 366 of the Civil Act is recognized for the ownership of a building in cases where land and a building owned by the same person belong to the ownership of another person by auction by the execution of a mortgage at the time of the establishment of a mortgage. Thus, in cases where a person who purchased unregistered building on the building site has received the registration of ownership transfer only for the building site and the building has not been registered, but for the building, if the building site was sold by auction due to the execution of the mortgage, and the building site was owned by another person, at the time of the establishment of the mortgage, the legal superficies is not established because the building site and the building are already owned by another person, respectively (see Supreme Court Decisions 8Da869, Dec. 8, 1987; 8Da2592, Feb. 14, 1989; 91Da16730, Aug. 27, 1991, etc.).

In addition, since the statutory superficies under customary law is deemed to have different owners of land and buildings owned by the same person due to sale and purchase or other causes, but it is recognized that allowing the owner of the building to continue to use the land unless otherwise stipulated, such as the removal of the buildings, is the intention of the party concerned. Therefore, if it is deemed that there exists an agreement between the parties as to the possession and use of the land, or if the land owner concurrently acquires the right to dispose of the building, there is no reason to recognize the statutory superficies under customary law. Thus, if the unregistered building was sold along with the building site, even if the building site and the building were sold to the buyer only on the building site, and registration for transfer of ownership has not been made, and if the building site and the building were formally the nominal owner, there is no reason to recognize the statutory superficies under customary law (see, e.g., Supreme Court Decisions 87Da634, Jul. 7, 1987; 91Da40610, Apr. 10, 1992; 984).

On the contrary, Supreme Court Decision 72Da1515 delivered on October 31, 1972, which expressed that the transferor and transferee at the time of the establishment of a mortgage in case where the transferee transferred the unregistered building on the site and its ground, and completed the registration of ownership transfer only on the site, and did not complete the registration of ownership transfer, if the owner of the site is different by the execution of the mortgage established on the site, the transferor and transferee at the time of the establishment of the mortgage, provided that the transferor would remove the building on the ground, and provided that the transferor would acquire the legal superficies under the customary law for the building, shall be discarded to the extent inconsistent with this.

2. According to the facts established by the court below, the defendant purchased the shares of the site and the unregistered buildings on the ground specified in the order of the court of first instance in sequential order through Nonparty 2, but only the share of the site was registered for ownership transfer and the registration of ownership transfer was not made with respect to the building. Thus, in light of the legal principles as seen earlier, the defendant or the non-party 1 cannot acquire the legal superficies or the customary legal superficies for the above unregistered building, and therefore, the defendant cannot exercise the customary legal superficies on behalf of the non-party 1 on behalf of the non-party 1.

In the same purport, the court below's rejection of the defendant's defense on legal superficies is just and acceptable, and there is no error in the misapprehension of legal principles as to legal superficies under customary law, as otherwise alleged in the ground of appeal.

3. 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 on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is delivered with Jin Jin-hun, which is written by Justice Song Jin-hun, and is written by the Justice Son Ji-yol who is a plaintiff.