If a site in a building or site belonging to the same owner becomes co-owned through a replotting disposition, the nature of the legal superficies;

Among the buildings and sites belonging to the same owner, the site was owned through a replotting disposition due to urban planning, and there is no legal basis to recognize legal superficies or similar rights for the buildings on the same site.

Article 366 of the Civil Act

Plaintiff

Defendant

Daegu District Court of First Instance (69 Ghana2900)

The original judgment shall be revoked.

The defendant shall pay to the plaintiff 106,245 won with the interest rate of five percent per annum from September 1, 1970 to the date of full payment.

The plaintiff's remaining claims are dismissed.

All the costs of lawsuit of both the first and second instances shall be divided into three parts, one of which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The original judgment is revoked. The defendant shall pay to the plaintiff the amount of KRW 141,660 with 5% interest per annum from September 1, 1970 to the full payment day.

The judgment that the lawsuit cost shall be borne by the defendant and the declaration of provisional execution are sought.

First of all, we examine the defendant's main defense of safety, and the defendant's attorney asserted that the plaintiff's lawsuit of this case should be dismissed as illegal because it is based on the lawsuit trust. However, the plaintiff's claim of this case is based on the acquisition of ownership and that the plaintiff has such ownership as stated below, and there is no evidence to find that the acquisition of ownership is for the trust of lawsuit. Thus, the above assertion is groundless.

If the plaintiff's share of 193-2 large 161 square meters and 1192-6 large 51 square meters and 1192-6 large 7 large 39 square meters and 72 square meters of the same 1192-7 large 1192, which were owned by the defendant, enter the main part of this case and owned by the non-party 1, the plaintiff's share of 106 large 109 square meters and 109-1 square meters of the same 72 square meters as a result of the execution of the land readjustment project in Daegu-si, which was owned by the non-party 1, the non-party 1, and the non-party 1, the non-party 1, who is the non-party 9's share of the above 1,09-100 large 1,000 won and the non-party 2, who is the non-party 1, is the co-owner's share of the above land.

Although the defendant's attorney asserted that the above claim of the plaintiff was extinguished by prescription, the warden of this case had already been received by the Daegu District Court which was the original court prior to the occurrence of this case's claim, the above assertion cannot be easily concluded.

The defendant's attorney asserts that the above land and the above land and the above-ground buildings owned by the defendant were owned by the defendant, and since the defendant acquired legal superficies for the above building on such land, it cannot be deemed that there is no legal ground for the above-mentioned land use relation. However, since the building and the site belonging to the same owner were owned by the land due to the disposition of replotting due to urban planning, there is no legal ground for recognizing legal superficies for the above-mentioned building or any similar rights. As for the portion refused to occupy and use in excess of the share ratio, the above assertion can be accepted as unjust enrichment and can claim damages from the rent-based party.

Although the defendant alleged that he was a bona fide occupant of the above land and the defendant had the right to profit from the use of the above land, if the above land possessed by the defendant was owned by the original defendant, it became a co-ownership relationship like the exhibition as a result of a replotting disposition due to the implementation of the land readjustment project in Daegu City, if it became a co-ownership relationship, the defendant's possession relationship with the above share of the

피고소송대리인은 다시 원고는 위와 같이 타인의 건물이 서있는 토지에 대한 지분권을 양수하여 이것에 있어서와 같은 소를 제기하는 것은 권리남용이거나 공서양속에 위반된 것으로서 무효이라고 주장하나 권리남용이란 것은 권리의 행사가 자기에게 아무런 이익도 없이 타인에게 손해를 끼치기 위한 것으로서 사회통념상 도저히 용납되지 아니하는 것을 말하는 것이고 보면 이러한 것에 대한 이무런 입증이 없는 이건에 있어서 원고의 위와 같은 지분권양수행위나 이를 원인으로 한 이건 청구가 권리남용이 되지 아니함은 물론 또한 그것이 피고의 궁박, 겅솔 또는 무경험으로 인하여 현저하게 공정을 잃은 것으로 볼 자료가 없으니 이를 공서양속에 위반된 것이라고도 할 수 없으므로 위 주장은 이유없다.

Furthermore, as to the amount to be returned by the Defendant to the Plaintiff, in full view of Nonparty 3’s testimony of the lower court and the purport of the party’s pleading, if the land possessed by the Defendant is leased to another person during the said nine-month period, it is recognized that 150 won per month would be 150 won per month, and there is no reflective evidence. Accordingly, the Defendant would make a total of 11,805 won per month by the Plaintiff’s share (78.7150 won) for nine months, a sum of 106,245 won per month by the Plaintiff’s share.

Therefore, since the defendant is obligated to pay the above money to the plaintiff the interest rate of five percent per annum under the Civil Act from September 1, 1970 to the full payment date, the plaintiff's objection claim is justified within the scope and the remainder is dismissed, and provisional execution declaration is not required, so the application shall be dismissed. Thus, the original judgment is revoked differently from the conclusion, and it is so decided as per Disposition by applying Articles 89, 92, and 96 of the Civil Procedure Act to the burden of litigation costs.

Judges Choi Hon-ro (Presiding Judge)