[1] In a case where the identity between the two buildings is denied due to the removal of the building and the new construction of the building after a joint mortgage was established on the land and the building owned by the same person, whether statutory superficies under Article 366 of the Civil Code is established if the land and the new building belong to another owner through an auction of the mortgaged property (negative)

[2] Where a building subject to auction loses independence by combining it with another building, the scope of existence of mortgage on the building subject to auction

[3] In a case where, after a joint collateral mortgage was created on a land owned by the same person and a building on the said ground, a new building was created by combining with another building and then the land and a new building belong to another owner through an auction, the case holding that statutory superficies for a new building is established, and its duration, scope, etc. shall be limited within the scope generally necessary for its use based on the previous building

[1] If a joint mortgagee becomes unable to acquire exchange values of a new building as a result of the removal of a new building after a joint mortgage was created on the land and a building on that land owned by the same person and the building on that ground, and the identity between the two buildings becomes denied, barring any special circumstances, the statutory superficies for the building shall not be established even if the land and the new building belong to another owner due to the auction of the mortgaged property, unless there is a special reason to the contrary.

[2] If the independence of a building is lost due to the combination with another building adjacent to the building subject to auction, only the building subject to auction cannot be transferred independently or subject to auction. In such a case, the creditor's mortgage on the building subject to auction shall continue to exist on the share of co-ownership corresponding to the ratio of the building subject to auction among the new buildings created by the said co-ownership.

[3] The case reversing the judgment below that the statutory superficies is established within the extent necessary for the maintenance and use of the entire new building, on the ground that the duration and scope, etc. of the statutory superficies should be limited within the extent generally required for the use of the previous building, in a case where, after the joint collateral mortgage was established on the same land and the building owned by the same person and the building, a new building was created by combining it with another building, and the land and the new building belong to another owner by auction thereafter, and the new building belongs to another owner

[1] Article 366 of the Civil Act / [2] Article 358 of the Civil Act / [3] Articles 358 and 366 of the Civil Act

[1] Supreme Court en banc Decision 98Da43601 delivered on December 18, 2003 (Gong2004Sang, 134) / [2] Supreme Court Order 93Ma929 delivered on November 10, 1993 (Gong194Sang, 158)

Plaintiff

Defendant (Attorney Park Jae-soo, Counsel for the defendant-appellant)

Daejeon District Court Decision 2009Na4020 Decided July 24, 2009

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

We examine the grounds of appeal.

In order to establish legal superficies under Article 366 of the Civil Act, there should be cases where there is a building on the land which becomes the object of a mortgage at the time of establishing a mortgage. Since there is a building at the time of establishing a mortgage, there should be cases where the building is reconstructed, extended, reconstructed, or newly constructed a new building, as well as cases where the building is demolished or demolished, and the duration, scope, etc. of the legal superficies should be limited to the extent generally necessary for its utilization based on the old building (see Supreme Court Decision 90Da19985 delivered on April 26, 191, etc.). However, if a joint mortgage was established on the land and the building owned by the same person and the building newly constructed and the new building become unusable, it would be difficult for a joint mortgagee to acquire exchange value of the new building, barring any special circumstances, to prevent damages due to the joint mortgagee's failure to do so, even if the land and the new building are owned by another owner due to an auction, the legal superficies should not be established.

On the other hand, if independence as a building has been lost due to the combination with another building adjacent to the building subject to auction, only the building subject to auction cannot be transferred independently or subject to auction. In such a case, the creditor's mortgage on the building subject to auction continues to exist on the co-ownership share corresponding to the ratio of the building to the building subject to auction among the new buildings created by the said co-ownership (see Supreme Court Order 93Ma929, Nov. 10, 1993).

Based on its adopted evidence, the court below acknowledged the following facts: the Defendant acquired the ownership of each of the instant land and the instant previous registered buildings, but did not acquire the ownership of the previous unregistered buildings that were connected thereto; on November 6, 2001, each of the instant land and the instant previous registered buildings was established in the name of the due credit cooperative; on March 2003, the Defendant changed the rooftop of the previous registered building and the unregistered building into the single panel branch of the building; on March 2003, the construction was conducted in combination with another building by destroying the walls facing each other, and connecting the external walls, and the Plaintiff acquired the ownership of each of the instant land at the auction procedure commenced by the execution of the said right to collateral security.

In light of the above facts in light of the legal principles as seen earlier, the right to collateral security on the previous registered building of this case continues to exist on the co-ownership of the new building of this case and its exchange value is to be secured, and there is no concern that the current credit union would suffer from the unexpected damages, and therefore, as long as each land of this case and the new building belong to another owner due to auction, the legal superficies for the new building shall be established. The judgment of the court below to the same purport is just, and the assertion in the grounds of appeal related thereto is not acceptable.

However, in light of the aforementioned legal principles, the duration, scope, etc. of legal superficies acquired by the Defendant are limited to the scope generally required for its use based on the previous registration building of this case. On a different premise, the lower court rejected the Plaintiff’s claim in entirety without further examining and determining the scope of general necessary for the use of the previous registration building of this case, which is deemed that legal superficies was established to the extent necessary for the maintenance and use of the entire new building of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of establishment of legal superficies under Article 366 of the Civil Act and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)