Plaintiff

Defendant (Attorney Clinical Kh Jeong-soo et al., Counsel for the defendant-appellant)

January 30, 2009

1. The defendant shall be the plaintiff.

(a) remove the part “4, 5, 6, 7, 15, 14, 13, 12, 17, and 4 of the annexed drawings on the ground of each real estate listed in the annexed list 1 and 2, of “cement 56 square meters of neighborhood living facilities of the cement block 56 square meters connected in order to each point;

B. The aforementioned portion of the land “4, e.g.,6, 7,” shall be transferred to the 56m2.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 50% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The Defendant, among the real estate listed in the separate sheet 1, 2, 3, 4, 17, 12, 13, 14, 15, 7, 8, 9, and 1 in the separate sheet 1, 2, 3, 4, 17, 12, 13, 14, 15, 7, 8, 9, in turn, shall remove the portion of “1, 2, 3, 4, 5, 6, 7” among the real estate listed in the separate sheet 1, 2, and 3, removed the portion of “a

1. Basic facts

A. On December 13, 1982, Nonparty 4 owned the real estate listed in the separate sheet 2 (hereinafter “instant land”). However, on December 13, 1982, Nonparty 4 approved the use of the instant land and the real estate listed in the separate sheet 1 (hereinafter “instant land”) pursuant to the Act on Special Measures for the Disposal of Specific Buildings (hereinafter “Special Measures Act”), with respect to the string of the instant land and the instant real estate listed in the separate sheet 2 (hereinafter “instant land”). However, on December 13, 1982, Nonparty 4 was in a state of non-registration.

B. Meanwhile, the non-party 5 owned the real estate indicated in the attached list 1 and 3 of this case (hereinafter “the land of this case”). The non-party 1, 2, and 3 owned each of the instant land (hereinafter “each of the instant land”). On November 23, 1984, the non-party 5 obtained approval for the use of the instant land under the Act on Special Measures for Residents’ Compensation and Development, and completed the registration of ownership preservation in its name on July 16, 191.

C. On July 1, 1991, the Defendant purchased the instant land and the previous unregistered building on November 6, 2001, and completed the registration of ownership transfer under the name of the Defendant on July 16, 1991, and purchased the instant land and the previous unregistered building from Nonparty 1, who completed the registration of ownership transfer from Nonparty 1, who leased the previous unregistered building and operated the previous unregistered building on the instant land, and completed the registration of ownership transfer under the name of the Defendant on July 16, 1991. On October 29, 2001, the Defendant purchased the instant land and the previous unregistered building from Nonparty 1 and completed the registration of ownership transfer under the name of the Defendant on November 6, 2001 only with respect to the instant land and the previous registered building on the same day, and established the Jin Credit Union (hereinafter “the instant mortgaged”).

D. After that, on March 2003, the Defendant entered the construction cost of KRW 1.5 million with permission from the competent authority, and constructed the reconstruction of the previous registered buildings and unregistered buildings. As a result, each of the instant lands listed in the table of drawings on each of the instant lands, “1, 2, 3, 4, 17, 12, 13, 14, 15, 15, 7, 8, 9, 1, and 1, connected each of the instant lands listed in the table of “1,2, 3, 4, 17, 12, 14, 15, 15, 7, 9, and 1,000 square meters for neighborhood living facilities on each of the instant lands (hereinafter “new building”). The new building appears to have one roof on each of the instant land.

F. On March 13, 2007, Jinjin-gu filed an application for voluntary auction with the Daejeon District Court for each of the instant lands and previous registered buildings based on the instant right to collateral security, and on March 13, 2007, the said court received a voluntary decision to commence the auction (2007ta, 2683). However, on April 10, 2006, the auction court revoked the decision to commence the auction on the previous registered buildings and dismissed the request for auction on the grounds that the location of the previous registered building is unknown. As such, the voluntary auction procedure was initiated only for each of the instant lands.

G. In the above auction procedure, the Plaintiff acquired ownership by winning a successful bid on July 6, 2007 each of the instant land.

[Ground of recognition] Unsatisfy, Gap 1 through 10 evidence, Eul 1 through 6 (including each number), the result of the verification, the result of the survey appraisal (including the result of the supplementary appraisal), the purport of the whole pleadings

2. The assertion and judgment

A. Determination on the cause of the claim

According to the above facts, the defendant is obligated to remove the new building and deliver the land to the plaintiff who seeks the removal of interference as the owner of each of the lands of this case, except in extenuating circumstances.

B. Judgment on the defendant's defense

The defendant does not construct a new building on the outer side, but it should be deemed that there are two buildings in fact as the columns and walls of the above two buildings are maintained, not after the previous registered buildings and unregistered buildings were destroyed. By the plaintiff's acquisition of ownership of each of the land of this case, statutory superficies under Article 366 of the Civil Act for the previous registered buildings have been established. The scope of the statutory superficies is 83 square meters in total of "A, B, C" among the land of this case and "A, B, C". Thus, the plaintiff's claim for removal and delivery of the land of this case is unjustifiable.

In order to establish legal superficies under Article 366 of the Civil Act, there should be a building on the land which is the object of a mortgage at the time of the establishment of a mortgage. If there is a building at the time of the establishment of a mortgage, even if the building is combined with another building that has no legal superficies adjacent to the building through reconstruction, extension, or large-scale repair construction, the statutory superficies shall be established. In this case, the duration, scope, etc. of the statutory superficies shall be limited to the extent generally necessary for its utilization based on the building before reconstruction, extension, or consolidation. However, if a joint mortgage was established on the land and the building belonging to the same person and a new building is removed and newly constructed, unless there are special circumstances, such as where the owner of the new building is identical to the owner of the land and the mortgagee of the land, the statutory superficies for the new building shall not be established even if the land and the new building belong to another owner (see Supreme Court en banc Decision 201Da36184, Dec. 18, 2003).

According to the above evidence, the defendant established a right to collateral security on the previous registered building and each land of this case owned by the defendant, and then changed the roof of the two buildings into one board roof around March 2003. The new building was built at the end of the large-scale repair work that has destroyed the walls facing each other, connects the outer walls, repairs part of the walls, and combines them into one unit of building. After which the right to collateral security was exercised on each land of this case, the defendant acquired ownership by bid. Meanwhile, the previous registered building at the time of the establishment of the right to collateral security was in the form of "A" with indication 1, 2, 3, 4, 5, 6, 7, 8, 9, and 83 square meters of the above land, and the previous building was in the form of "A" with the size of 1, 2, 7, 14, 17 and 83 square meters of the above land, and the previous building was in the form of "a piece of land, 14, 157, m2.

In regard to this, the plaintiff argued that the legal superficies for the new building is not established since the previous registered building was destroyed and the new building was newly constructed. On April 10, 2006, the above auction court cancelled the decision to commence the auction of the previous registered building and decided to dismiss the request for auction on the ground that the location of the previous registered building is unknown, as seen above, the fact that the voluntary auction procedure was conducted only for the land of this case is recognized as above. According to the above evidence, although the previous registered building and the unregistered building were the structure of each wood string roof, the new building is the cement string roof, and even if the size of the previous two buildings is combined, the new building is less than 115.72 square meters, and the size of the new building is less than 136 square meters, and only one new building is recognized as two buildings, but it is insufficient to recognize that the previous building was destroyed and the previous building was destroyed and thus, the plaintiff's assertion that it was not sufficient to acknowledge it as a new building and the new building is not acceptable.

3. Conclusion

Thus, the defendant is obligated to remove the "div, e.g., f., f., 7, 15, 14, 13, 12, 17, and 4 of the annexed drawings on the ground of the case 1, 2 land of this case, and remove the "cement, v., f., g., g.," and deliver the land to the plaintiff, and the plaintiff is obligated to deliver the land to 56 square meters of neighborhood living facilities on the cement block. Thus, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claim is dismissed

[Attachment of Real Estate List and Appraisal]

Judge Choi Hyun-sung