Whether statutory superficies for a building is established in cases where the owner of land and a building are changed due to the auction procedure only for the land after the registration is closed on the ground that the building on which a joint collateral mortgage is created continues to exist as it is, and the registration is recorded in the register (affirmative)

The statutory 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 at the time of the establishment of a mortgage, in which such land and building belong to the ownership of the same person by an auction by exercising a mortgage. This also applies in cases where a joint mortgage was established on the land and building owned by the same person, but auction has been executed only one of them, but the owners becomes different. However, if a joint mortgagee becomes unable to acquire exchange value of a new building as a result of the removal of a new building and new construction of a new building after the joint mortgage was established, barring any special circumstance, in order to prevent the non-defluence of the joint mortgagee, the land and the new building belong to the owner of the other building, even if the land and the new building belong to the same person by auction of the mortgaged property, the statutory superficies for the new building is not established. However, in cases where a registry is closed due to a different entry in the register from the fact, the mortgagee cannot be seen as being used as a mortgage for the same purpose.

Article 366 of the Civil Act

Supreme Court en banc Decision 98Da43601 Decided December 18, 2003 (Gong2004Sang, 134) Supreme Court Decision 2009Da66150 Decided January 14, 2010 (Gong2010Sang, 315)

Plaintiff (Attorney Park Young-soo, Counsel for plaintiff-appellant)

Defendant (Law Firm Hongju, Attorneys Gyeong-tae et al., Counsel for the defendant-appellant)

Daejeon District Court Decision 2012Na7234 Decided October 17, 2012

Of the lower judgment, the part of the lower judgment on the “A” portion of the “A” portion, which was connected in sequence with each point of the 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 3 of the attached drawings, is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. As to the removal of the instant part of the “A” and the claim for delivery of the said part of the land

A. citing the reasoning of the judgment of the court of first instance, the court below acknowledged the following facts: the non-party 1 created a collateral on the land of this case and the housing on November 15, 200, which he owned by the non-party 1 as joint collateral; the registration of destruction was completed on December 29, 2005 on the ground that the building on the above ground was destroyed, but still remains without loss; the non-party 2 acquired the ownership by winning a successful bid for the land of this case; the plaintiff purchased the land of this case from the non-party 2, and the defendant acquired the ownership by consultation with the non-party 1 to own the above housing; the non-party 2 acquired the above housing for the purpose of acquiring the legal superficies of this case on the land of this case on which the non-party 1 was the owner of the land of this case, but the defendant did not have a duty to exchange the land of this case with the land of this case for the purpose of acquiring the legal superficies of this case on the ground that the land of this case was destroyed and disposed of the property of this case.

B. However, it is difficult to accept the judgment of the court below on legal superficies for the following reasons.

The statutory superficies under Article 366 of the Civil Act is recognized for the ownership of a building if the land and a building owned by the same person belong to the ownership of another person at the time of the establishment of a mortgage, due to an auction conducted by the exercise of mortgage rights. The same applies to cases where joint mortgages were established on the land and a building owned by the same person, but auction was executed only one of them becomes different. However, the same applies to cases where a joint mortgagee becomes unable to acquire exchange values of a newly constructed building as the result of the removal of the building and the new construction of the building, barring any special circumstance, in order to prevent the influence of the joint mortgagee from acquiring exchange values of the building. However, even if the land and a new building belong to the owner of another building due to the auction conducted by the same person, statutory superficies for the building cannot be established (see Supreme Court en banc Decision 98Da43601, Dec. 18, 2003; Supreme Court Decision 2000Da6165, Jan. 14, 2010).

On the other hand, the judgment of the court below that the legal superficies of this case was not established on the ground that it was impossible for the Seocho Agricultural Cooperative to realize its security due to the completion of the registration of destruction of the house of this case. It is erroneous in the misapprehension of legal principles as to the legal superficies of Article 366 of the Civil Act. The ground of appeal pointing this out is with merit.

2. As to the removal of the instant “B” housing, “C,” and “D” warehouse, and the claim for the delivery of the part of the land

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court determined that the Defendant was obligated to remove the Plaintiff’s housing and warehouse in the part “B,” “C, and “D,” and that it was obligated to deliver the land to the Plaintiff, and that it is acceptable to reject the Defendant’s legal superficies defense. In so doing, the lower court did not err by misapprehending the legal doctrine on legal superficies, as otherwise alleged in

3. Conclusion

Therefore, among the judgment below, the part concerning the removal of housing 113 square meters and the claim for delivery of the above part of the land shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)