[1] Meaning of “right holder” under the proviso of Article 256 of the Civil Act, and in a case where a person without title has planted trees on another’s land, whether the owner of the land may assert the right to use the land (negative in principle) / Whether the said right constitutes “right holder” under the proviso of Article 256 of the Civil Act (negative in principle)

[2] In a case where a financial institution does not exclude an obligor, etc.’s right to use and benefit from the land when it establishes a superficies without any rent along with a mortgage on the land for securing loan claims, whether a landowner may use and benefit from the land (affirmative in principle), and in a case where a landowner acquires the right to use and benefit from the land at this time, whether such right constitutes “right holder” under the proviso of Article 256 of the Civil Act (affirmative)

[1] Article 256 of the Civil Act provides, “The owner of an immovable shall acquire the ownership of an article attached to the real estate. However, the same shall not apply to an article attached by the title of another person.” The term “right holder” as referred to in the proviso of the above Article refers to the right to use an article attached to another person’s real estate, such as superficies, right to lease on a deposit basis, right to lease on a deposit basis, and right to lease. Thus, barring any special circumstance, barring special circumstance, a person without such title may not claim the ownership of

A superficiary has the right to use another’s land for the purpose of owning buildings, other structures, or trees (Article 279 of the Civil Act). If a registration of creation of superficies has been made, the right to use and benefit from the land is the superficiary, and the landowner who has established superficies is not entitled to use and benefit from the land so far as superficies exist. Therefore, even if the landowner who established superficies acquired the right to use the land from the landowner who established superficies, as long as the superficies exists, such right does not, in principle, constitute “right holder” as stipulated in the proviso of

[2] Where a financial institution does not exclude a debtor, etc. from the right to use and profit from the land for the purpose of securing loan claims, it is aimed at securing the collateral value of mortgaged real estate by preventing a third party from acquiring a right to use or undermining the collateral value of the land until the mortgage is executed. Therefore, barring special circumstances such as there is a concern over lowering the collateral value of mortgaged real estate, the landowner may use and profit from the land. Therefore, if it acquired a right to use and profit from the land from such landowner, such right may be deemed to constitute “right” under the proviso of Article 256 of the Civil Act.

[1] Articles 211, 256, and 279 of the Civil Act / [2] Articles 211, 256, and 279 of the Civil Act

[1] Supreme Court Decision 74Da1150 decided Nov. 12, 1974 (Gong1975, 8166) Supreme Court Decision 88Meu9067 decided Jul. 11, 1989 (Gong1989, 1213) / [2] Supreme Court Decision 2006Da586 decided Jan. 17, 2008

[Judgment of the court below]

Defendant

Seoul High Court Decision 2015Na8362, 25015 decided October 27, 2015

The main part of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Article 256 of the Civil Act provides, “The owner of an immovable shall acquire the ownership of an article attached to the real estate. However, the same shall not apply to an article attached by the title of another person.” The term “right holder” under the proviso of the above Article refers to the right to use another person’s real estate by attaching his/her movable property, such as superficies, right to lease on a deposit basis, right to lease on a deposit basis, and right to lease. Thus, barring any special circumstance, barring any special circumstance, a landowner cannot claim the ownership of the article (see Supreme Court Decision 88Meu9067, Jul. 11, 1989, etc.).

A superficiary has the right to use another’s land for the purpose of owning buildings, other structures, or trees (Article 279 of the Civil Act). If a registration of creation of superficies has been made, the right to use and benefit from the land is against the superficiary, and the landowner who has established superficies is not entitled to use and benefit from the land as long as the superficies exists (see Supreme Court Decision 74Da1150, Nov. 12, 1974). Therefore, even if a landowner who has established superficies acquired the right to use the land from a landowner who has established superficies, such right does not, in principle, constitute “right” as provided for in the proviso of Article 256 of the Civil Act.

However, in a case where a financial institution does not exclude a debtor, etc. from the right to use and profit from the land for the purpose of securing loan claims, it is aimed at securing the collateral value of mortgaged real estate by excluding an infringement by a third party’s acquisition of the right to use and profit from the land until the mortgage is executed (see Supreme Court Decision 2006Da586, Jan. 17, 2008). Unless there are special circumstances, such as where the landowner might have reduced the collateral value of mortgaged real estate, it shall be deemed that it may use and profit from the land. Accordingly, if it acquired the right to use and profit from the land from such landowner, such right constitutes “right source” as provided in the proviso of Article 256 of the Civil Act.

2. A. The reasoning of the lower judgment and the record reveal the following facts.

(1) On June 24, 1997, Nonparty 1 completed each registration of ownership transfer with respect to the portion of 1,008/2,763 square meters (hereinafter “instant land”) among the portion of 2,763 square meters (hereinafter “instant land”) in Goyang-si, Goyang-si, and Nonparty 2 completed each registration of ownership transfer with respect to the portion of 1,755/2,763 out of the instant land on the same day.

(2) On August 11, 2005, the Gold Village Agricultural Cooperatives (hereinafter “FFFC”) concluded a mortgage agreement with Nonparty 2 regarding the share of Nonparty 2 among the instant land, and completed the registration thereof, and concluded a superficies agreement with Nonparty 2 and Nonparty 1 (hereinafter “Nonindicted 2, etc.”) with respect to the whole land of this case for 30 years without compensation, and completed the registration of creation of superficies on August 18, 2005 (hereinafter “the superficies of this case”).

(3) The Plaintiff entered into a loan agreement with Nonparty 2, etc. for the use of trees on the instant land from October 2007 to November 2007, and planted approximately KRW 300 prone trees (hereinafter “instant prone trees”) on the ground of the instant land.

(4) Thereafter, on December 8, 2010, the auction procedure for real estate rent was commenced in order to support the High Court for the shares of Non-Party 2 among the instant land at issue. The Defendant purchased the shares of Non-Party 2 and paid the proceeds of the sale on July 15, 201, at the above auction procedure.

B. The court below rejected the claim of this case for tort against the defendant, who arbitrarily collected and sold part of the part of the tree of this case, based on the loan agreement for use concluded with the non-party 2, who is the co-owner of the land of this case, and purchased on the ground of the land of this case, and rejected it for the following reasons.

(1) By completing the registration of creation of superficies on the entire land of this case with Nonparty 2, the Gold Village Agricultural Co., Ltd. acquired the right to use the land of this case and at the same time Nonparty 2, the owner of the land of this case, etc. lost the right to use the land of this case.

(2) After that, even if the Plaintiff planted the instant tree by concluding a loan agreement with Nonparty 2, etc., insofar as Nonparty 2, etc. did not have the right to use the instant land for the possession of trees, the Plaintiff did not acquire such legitimate right.

(3) Therefore, the above loan agreement does not constitute “right holder” as stipulated in the proviso of Article 256 of the Civil Act, and, at the same time, the instant simple tree became owned by Nonparty 2, etc., the owner of the instant land, by planting it to the Plaintiff and complying with the instant land.

(4) Therefore, the Plaintiff’s assertion premiseding that the instant tree is owned by the Plaintiff is without merit.

C. We examine the judgment of the court below in light of the aforementioned legal principles.

The purpose of this case is to secure the collateral value of the land of this case, which is a mortgaged real estate, until the establishment of the right to collateral security of the land of this case, is to secure the collateral value of the land of this case, in order to secure the collateral value of the land of this case from among the land of this case for the guarantee of the loan claim against Nonparty 2. In this case, it is reasonable to deem that the loan agreement entered into between the Plaintiff and the owner of the land of this case for the purpose of owning trees constitutes the “right” under the proviso of Article 256 of the Civil Act, and thus, the land of this case is not inconsistent with the land of this case.

Therefore, the lower court should have deliberated on the purpose, background, details, etc. of the creation of the superficies of this case and examined whether it had Nonparty 2, the owner of this case, etc. use and benefit from the land of this case.

Nevertheless, the lower court concluded that Nonparty 2, etc., the owner of the instant land lost the right to use the instant land solely on the ground that the superficies was established without sufficiently deliberating on the above circumstances, and determined that the loan agreement concluded with Nonparty 2, etc., concluded with Nonparty 2, etc. does not constitute “right holder” under the proviso of Article 256 of the Civil Act. In so doing, the lower court erred by misapprehending the legal doctrine on superficies acquired in order to secure the collateral value with the acquisition of mortgage and its collateral value, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below is reversed, and that part of the case is remanded 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 Ko Young-han (Presiding Justice)