(a) Whether the transferor acquires legal superficies for the ownership of a building if the owner of land and a building changes due to the exercise of a mortgage established on the land that was not completed by the transferee of the building due to the relationship between the land and the building owned by the same person and the unregistered building (affirmative);

(b) Where a building owner transfers a building before acquiring the statutory superficies, whether the transferee of the building is entitled to seek implementation of the registration of creation of the superficies and the registration procedure for transfer thereof in sequence against the transferor and the site owner who purchased the land from him/her (affirmative)

(c) Requests by a housing site owner for removal of buildings based on the ownership and the principle of good faith for a person in a position to acquire legal superficies;

(a) If the transferee of a parcel of land and a building owned by the same person fails to complete the registration of ownership transfer due to the relationship between the land and the building not yet registered, the ownership still remains in the transferor, and if the owner of the land and the building are changed as a result of the exercise of the mortgage established on the land as a result of the exercise of the mortgage, the transferor shall acquire the legal superficies for

B. In cases where a building owner transfers a building prior to acquiring legal superficies for the ownership of the building, barring any special circumstance, barring any special circumstance, the legal superficies to be acquired in the future with the building cannot be deemed to have been transferred along with the building, and thus, the transferee may seek implementation of the procedure for the registration of creation of superficies and its transfer in sequence to the transferor and the land owner who purchased the land in this case from the transferor, pursuant to

C. A land owner’s seeking removal of a building against the transferee of the building who is in the position to acquire legal superficies is not permitted under the principle of trust and good faith, as a person who is obligated to accept the burden of superficies and implement procedures for registration of creation of superficies against the right holder.

(b)Article 366(c) of the Civil Code; Article 2 of the Civil Code;

A.B. (C) Supreme Court Decision 88Meu15338 Decided May 9, 1989 (Gong1989,902). Supreme Court en banc Decision 84Meu1131,1132 Decided April 9, 1985 (Gong1985,721). Supreme Court Decision 91Da21701 Decided September 24, 1991 (Gong191,2612) (Gong192,2137) Decided June 12, 1992

[Judgment of the court below]

Defendant Kim-jin, Counsel for the defendant-appellant

Suwon District Court Decision 90Na4003 delivered on January 11, 1991

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

We examine the grounds of appeal.

The judgment of the court below, on the ground of its reasoning, newly constructed the building of this case on the land of this case where the non-party 1 had been registered as the owner, around 1970, and the defendant had purchased the building of this case on March 15, 1973, but failed to register the ownership transfer due to the unregistered relation, only the land of this case is subject to voluntary auction procedure, and on January 29, 1974, even if the land was sold to the non-party 2, the defendant who acquired the unregistered building has the status to dispose of the building in possession within the scope of his right by law or in fact. Thus, the above non-party 1 cannot claim legal superficies for the existence of the building.

However, if the above non-party 1 newly built a building on the land that was registered in the future and the defendant did not complete the registration, as alleged in its assertion, the ownership of the building still remains in the non-party 1. If all the land and the building were owned by the above non-party 1 at the time of establishing the mortgage on the land in this case, the above non-party 1 acquired legal superficies for the ownership of the building when the land was sold to the above non-party 2. Meanwhile, if the owner of the building transferred the building before acquiring the legal superficies for the ownership of the building, the legal superficies to be acquired together with the building cannot be deemed to have been transferred together with the building unless there are special circumstances. Thus, the defendant can seek implementation of the procedure for establishing the superficies and its transfer registration against the plaintiff who purchased the land in this case from the above non-party 1, the non-party 2 and the non-party 1, and the plaintiff who purchased the land in this case, which is in the status of acquiring the legal superficies in this case, it can be decided 1981.

In Supreme Court Decision 88Meu4017 Decided September 27, 1988, a party member admitted by the court below completed the registration of the land and the building on its ground, but in the case where only the land belongs to the former owner due to an unregistered relation, and only the land is successful, the building purchaser cannot acquire legal superficies for the ownership of the building, while in the case where the building is in a position to legally or factually dispose of the building in possession within the scope of the right, the building should be demolished at the request of the land successful bidder. Thus, the facts and main issues of this case are different.

Therefore, at the time of establishing a mortgage on the land of this case, the court below should first determine whether the land and buildings were owned by the above non-party 1, and then decide whether to establish the statutory right of this case. However, denying the establishment of the statutory right of this case by misapprehending the legal principles on the statutory superficies, thereby affecting the conclusion of the judgment by failing to exhaust all necessary deliberations, for the reasons stated in its reasoning.

The argument pointing this out is with merit.

Therefore, without further determination as to the remaining grounds of appeal, we reverse the judgment below and remand the case to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-han (Presiding Justice)