Where the owners of land and its ground buildings vary due to a replotting disposition, whether statutory superficies under customary law exists (negative)

Even if a new partition cadastral line due to a substitute lot has changed between the owners of the land and the buildings belonging to the same person before the substitute lot, it cannot be said that the owner of the building who lost ownership over the site of the building due to the nature of the substitute lot obtains a statutory superficies in customary law for the building against the substituted land, or that the owner of the substituted land has the burden of statutory superficies in customary law for the building.

Article 279 of the Civil Act, Article 62 of the Land Readjustment Projects Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff (Attorney Yang Chang-soo, Counsel for plaintiff-appellant)

Defendant (Attorney Yellow-jin et al., Counsel for the defendant-appellant)

Seoul District Court Decision 95Na20675 delivered on August 23, 1995

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

The defendant's attorney's grounds of appeal are examined.

1. As in the case of this case, even if the new partition cadastral line due to the replotting changed from the land and the building owner belonging to the same person before the replotting, it cannot be said that the owner of the building who lost ownership as to the site of the building due to the nature of replotting acquires customary statutory superficies for the building or that the owner of the substitute land bears the burden of statutory superficies for the building (see Supreme Court Decision 89Meu1305 delivered on April 9, 191, 191). In addition, if the previous land was owned by the plaintiff and his husband in the form of sectional co-ownership as alleged by the defendant, unlike ordinary co-ownership, in the case of the land purchase, the specific part purchased by each party becomes the sole owner, and thus, the above non-party 1 constructed the building on the part of the plaintiff's own site and the land owned by the plaintiff's owner, and therefore, it cannot be viewed that there is no error in the misapprehension of legal principles as to the land owner's original legal superficies for the purpose of this case's land ownership or that there is no ground for 984.

2. The Plaintiff, her husband, did not raise any objection thereto at the time when the said building was constructed, or thereafter thereafter, and sought removal of the said building after changing ownership of the said building, cannot be deemed as going against the good faith principle. The Plaintiff transferred ownership of the instant building site to Nonparty 1 and transferred ownership of the said building site to the said Nonparty 1, and the ownership of the building and site was reverted to the same person. However, the Plaintiff filed a claim for removal of the instant building on the ground that, in collusion with each other, the ownership was recovered through the most, and that the ownership of the building and site was not attributed to the same person, the Plaintiff’s claim for removal of the instant building on the ground that the Plaintiff did not belong to the same person

In the judgment below, there is no error in the misapprehension of legal principles as to the good faith principle. The argument also is without merit.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-tae (Presiding Justice)