Whether statutory superficies under Article 366 of the Civil Act is established in cases where a mortgagee of a right to collateral security agrees to the construction of a building at the time of establishment of a right to collateral security (negative)

The statutory 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 established. If, at the time of the establishment of a mortgage on the land, the building on the land without a building was established before the commencement of the construction of the building by the land owner on the land at the time of the establishment of the mortgage, even if the mortgagee consented to the construction of the building by the land owner at the time of the establishment of a mortgage on the land without a building, such circumstance cannot be known to the third party who is awarded the successful bid for the land because such circumstance cannot be deemed to be subjective and publicly notified. Therefore, if the establishment of the statutory superficies is recognized on the ground of such circumstance,

Article 366 of the Civil Act

Supreme Court Decision 87Meu869 delivered on December 8, 1987 (Gong1988, 168) Supreme Court Decision 92Da2030 delivered on June 25, 1993 (Gong1993Ha, 2098), Supreme Court Decision 95Da24524 delivered on December 26, 1995

Plaintiff (Law Firm Sejong, Attorneys Lee Yong-soo et al., Counsel for plaintiff-appellant)

Defendant (Attorney Kang-hee et al., Counsel for defendant-appellant)

Seoul High Court Decision 2002Na47572 delivered on April 30, 2003

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

1. Regarding ground of appeal No. 1

Legal superficies under Article 366 of the Civil Act are recognized only when there is a building on the land that is the object of a mortgage since the mortgage was established. If a person who established a mortgage established a building on the land without a building after the mortgage was established, but the site and the ground were the owners due to auction, statutory superficies under the above Act are not recognized (see, e.g., Supreme Court Decisions 87Meu869, Dec. 8, 1987; 92Da2030, Jun. 25, 1993; 95Da24524, Dec. 26, 1995). However, even if a mortgage was established on the land without a building, if the building was under construction by the owner of the land, and it did not reach the degree that it can be seen as an independent building in terms of social and economic concept, it is not necessary for the person who established the legal superficies to be established under Article 29 of the Civil Act, and if it is expected that the building would have been completed by 196.

If, at the time of the establishment of a mortgage on the land at the time of the commencement of the construction of a building by the owner of the land on the land, if the mortgagee consented to the construction of the building by the owner of the land at the time of the establishment of a mortgage on the land without the building, such circumstance cannot be known as a third party who is awarded a successful tender for the land because it cannot be publicly announced as subjective matters. Therefore, if the establishment of a legal superficies is recognized on the ground of such circumstance, legal relations such as undermining the legal stability of the third party who seeks to acquire the ownership of the land

As duly determined by the court below, since the land of this case was in the site at the time when the right to collateral security was established on August 30, 1996 and the right to collateral security on August 31, 1996, and the building of this case was not commenced, the land of this case was in the state of site at the time of the establishment of the right to collateral security on August 30, 1996, and there is no possibility that the ownership of this case was successful in the auction procedure conducted on August 30, 1996, and there is no possibility that the legal superficies or customary legal superficies for the ownership of the building of this case against the land of this case between the non-party 1 and the non-party 2 who was the owner of this case at the time when the right to collateral security was established on August 30, 1996. The judgment of the court below is just and there is no error in the misapprehension of legal principles as to the establishment of legal superficies or customary legal superficies as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

The lower court determined that, even if Nonparty 1 expected legal superficies and received a successful bid in an amount less than half of the appraisal price of the instant land, and the Plaintiff purchased the instant land from Nonparty 1 at low cost, solely on such circumstance alone, the claim for removal of the instant building cannot be deemed contrary to the good faith principle or constitutes an abuse of rights.

In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

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

Justices Son Ji-yol (Presiding Justice)