A. Whether the previous statement was corrected by B/B’s statement in a case where there is a statement before and after the mutual inconsistency (affirmative)

B. Whether statutory superficies prescribed in Article 366 of the Civil Act is established when there is no identity between the old building existing at the time of establishing a mortgage and the new building newly constructed after removing them (affirmative)

(c) A division of legal superficies against a person who trusts another person with the ownership of a building site and any of the above-ground buildings;

D. Whether statutory superficies under Article 366 of the Civil Act or statutory superficies under the customary law is recognized only when a building exists on the land subject to mortgage at the time when the mortgage was created (affirmative)

(a) When there is a statement before and after a mutual inconsistency, the previous statement may be deemed to have been corrected by the statements of B

B. Legal superficies under Article 366 of the Civil Code is established when a building existing at the time of establishing a mortgage is removed and a new building is newly constructed (However, the content of legal superficies is limited within the scope generally required for its utilization based on the old building). In this case, there is no need to have the identity between a new building and a previous building.

C. In a case where a title of ownership of a site is entrusted to another person, the truster cannot assert that the site is one’s own ownership to the third person, and therefore, it cannot acquire legal superficies premised on that the site and its ground buildings are owned by the same person.

D. The statutory superficies under Article 366 of the Civil Act is recognized only when a building exists on the land which is the object of a mortgage from the time the mortgage is created, and in case where the mortgager constructed a building on the land which is not a building after establishing a mortgage on the land which is the object of a mortgage, but the site and its ground are different from the owner due to auction during the voluntary auction procedure, the statutory superficies under the above Article is not recognized, and there is no customary statutory superficies.

A. Article 261(b) of the Civil Procedure Act. Article 366(c) of the Civil Act / [title trust]

A. Supreme Court Decision 429Da465 delivered on May 22, 1979 (Gong1979, 198) (Gong1979, 11983) (Gong1991, 215) (Gong1998, 215). (d) Supreme Court Decision 92Da9388 delivered on June 26, 1992 (Gong1992, 2271). (2) Supreme Court Decision 906Da6399 delivered on July 10, 1990 (Gong190, 1691), 90Da1985 delivered on April 26, 1991 (Gong1989, 1989), 90Da19889 delivered on June 26, 197 (Gong199, 199, 197).

Seoul Trust Bank, Inc.

[Defendant-Appellant] Defendant 1 and 3 others

Defendant 1 and 3 Defendants, et al., Counsel for the defendant-appellant-appellee

Seoul High Court Decision 91Na45839 delivered on April 17, 1992

All appeals are dismissed.

The costs of appeal shall be assessed against the defendants.

We examine the grounds of appeal.

1. On the first ground for appeal

The former statement may be deemed to have been corrected by the statements made before and after contradictions with B. Thus, the court below did not err by misapprehending the legal principles regarding the Defendants’ previous assertion (the legal brief made on November 14, 1990) that “each of the instant buildings was newly constructed prior to the completion of the registration of the establishment of a neighboring building in the Plaintiff’s name on August 2, 1985, and Defendant 2 acquired it initially.” The Defendants’ previous assertion (the legal brief made on November 14, 1990) was that there were two or more buildings owned by Defendant 1 on the instant site at the time of the establishment of the foregoing right to collateral security was the object of the instant land and two buildings owned by Defendant 1. After Defendant 1 removed the two buildings of this case, the Defendants constructed each of the instant buildings after Defendant 1 removed the said building.”

In addition, the court's duty to explain is exercised to clarify the purport of the party's statement when the party's statement is ambiguous and well-known. Thus, even if a statement is inconsistent with the previous statement, there is no obligation to explain it when the court can reverse the purport of the statement (see, e.g., Supreme Court Decision 87Meu1801, Mar. 8, 198). Thus, the court below's failure to explain whether the previous statement was withdrawn by the above B's statement cannot be deemed to have violated the duty to explain. The arguments are without merit.

2. On the second ground for appeal

A. As to the defendants' assertion of legal superficies, the court below held that even if the defendant 1's assertion was based on its assertion, the building owned by the defendant was removed after the establishment of the right to collateral security and was newly built after the establishment of the right to collateral security, and since the removal of the building and the building newly built thereafter cannot be seen as the building that existed at the time of the establishment of the right to collateral security, since it is difficult to recognize its identity in light of its structure, form, area, etc., the above new building cannot be seen as the building that had existed at the time of the establishment of the right to collateral security, and if the defendants purchased the building site jointly and entrusted only the registered name to the defendant 2, the defendant did not have any reason to view that the defendant owned the building site of this case as well as the building site of this case. Accordingly, in the case of the remaining defendants, the construction of each building listed in the items 2, 3, and 4 of the attached Table 2, 3, and 4 was the owner of the same defendants.

B. Legal superficies under Article 366 of the Civil Act is established when a building existing at the time of establishing a mortgage is removed and a new building is newly constructed (However, the content of legal superficies is limited to the extent generally necessary for its use based on the old building). Since it does not require the identity of a new building and a previous building, it is also like the theory that the judgment of the court below is erroneous in the misapprehension of legal principles as to legal superficies.

C. However, in a case where the title of ownership of a site is entrusted to another person, the truster cannot assert that the site is one’s own ownership, and therefore, it cannot acquire legal superficies premised on that the site and its ground are owned by the same person (see Supreme Court Decision 91Da7200, May 28, 1991). Therefore, it is proper for the court below to determine that Defendant 1 cannot acquire legal superficies in the same purport, and it is not erroneous in the misapprehension of legal principles, such as the theory of lawsuit.

D. Therefore, even if the court below erred by misapprehending the legal principles in the judgment of the former part of the above "A" which added unnecessaryly to Defendant 1, this does not affect the conclusion of the judgment.

There is no reason for the issue.

3. On the third ground for appeal

Legal superficies under Article 366 of the Civil Act is recognized only when there is a building on the land which is the object of a mortgage since the mortgage was created. If a mortgager constructed a building on the land which is the object of a mortgage after establishing a mortgage on the land which is not a building, but the site and its ground were different from the owner due to auction in the voluntary auction procedure, the statutory superficies under the above provision of the Civil Act is not recognized and the customary statutory superficies is not recognized (see Supreme Court Decision 87Meu869 delivered on December 8, 1987). Thus, since the court below confirmed the construction of a new building on the land after the establishment of a mortgage on the land of Defendant 2, as long as the court below confirmed it lawful, the defendant cannot acquire not only the statutory superficies under Article 366 of the Civil Act, but also the customary statutory superficies under the above legal principles, it is not accepted because the facts that the court below did not recognize, or because it was based on the independent opinion or because it violated

4. On the fourth ground for appeal

The court below held that there was a building owned by the defendants on the ground at the time of filing a request for auction of the site of this case, so the plaintiff, a mortgagee, had filed a request for auction of the site of this case, even though it was possible to request auction of each of the above buildings, and the plaintiff, a successor to the plaintiff, even after being aware of such circumstances, purchased the above site and sought removal of each of the above buildings exceeding three times the above site price against the defendants cannot be said to be erroneous in the misapprehension of legal principles as to abuse of rights or in the violation of judicial precedents, such as a theory, in rejecting the defendants' assertion

5. On the fifth ground for appeal

In addition, the court below erred by omitting judgment on the defendants' assertion that the plaintiff succeeding intervenor's claim of this case was an anti-social juristic act, but since the plaintiff succeeding intervenor's claim of this case cannot be deemed to be a anti-social juristic act on the record, the above argument is dismissed, and the above error of the court below does not affect the conclusion of the judgment. There is no reason to see this.

6. Accordingly, all appeals are dismissed, and the costs of appeal are assessed against the losing Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice)