Building and legal superficies constructed after the establishment of a mortgage on land;

The legal superficies under Article 366 of the Civil Code is a requirement that a building on the ground exists on the land at the time of establishing a right to collateral security.

Article 366 of the Civil Act

65Da1404 decided Aug. 31, 1965 (No. 1821, and Civil Code No. 366(8) and 367, et al.)

Korean Commercial Bank, Inc.

Defendant 1 and four others

Seoul District Court of First Instance (67Ga13717)

(1) The part between the Plaintiff and the Defendant 2, 3, and 4 in the original judgment shall be revoked.

(2) The Plaintiff, Defendant 2: (a) indicated in the annexed drawing (1), (2), (3), (4) and (5) of the total of 131 to 27 square meters, Defendant 2: (b) indicated in the annexed drawing (1), (2), (3), (4) and (5) of Yeongdeungpo-gu Seoul Metropolitan Government, Yeongdeungpo-gu, Seoul Metropolitan Government, as well as Defendant 2: (c) indicated in the annexed drawing among the 1st 8th 6th Gamen in building; and (d) the portion indicated in the annexed drawing (1) of the building among the 1st 8th Gamen in building; and (e) the portion indicated in the annexed drawing (5) of Defendant 4 among the above buildings.

(3) The Plaintiff’s appeal against Defendant 5 and Defendant 1’s appeal are all dismissed.

(4) Of the costs of appeal, the costs of appeal between the Plaintiff and Defendant 1 are assessed against the said Defendant, and the costs of appeal between the Plaintiff and Defendant 5 are assessed against the Plaintiff respectively. The costs of appeal between the Plaintiff and Defendant 2, 3, and 4 are assessed against the said Defendants in both the first and second instances.

(5) The plaintiff can execute a provisional execution only under the above Paragraph (2).

The plaintiff (Appellant and appellant)'s attorney shall remove 131 to 27 square meters, 5 to 131 to 27 square meters, 1, 2 (1), 3 (2), 4 (4), and 5 to order the land of this case by removing 1 mentmen, mentmen, mentmen and sap sap sap sap sap sap sap sap sap sap sap sap sap sap sap sap sap sap sap sap sap sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp sp 3p sp sp sp sp s from the above building.

The costs of lawsuit were assessed against the Defendants and the declaration of provisional execution.

Defendant (Appellant) 1 Attorney

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

The plaintiff's litigation costs are assessed against the plaintiff, and the plaintiff's attorney sought the same judgment as the disposition.

(1) As to the claim against Defendant 1:

According to Gap evidence No. 1, which has no dispute over the establishment, the above site shall be presumed to be owned by the plaintiff as it is recognized that 5 of Yeongdeungpo-gu Seoul Metropolitan Government No. 131 and 27 square meters of the title transfer registration was passed in the name of the plaintiff, and the above site shall be presumed to be owned by the plaintiff. The facts that defendant 1 owned mentor stone, mentor and apap evaluation building 1 and 8 square meters of the title of the building and 8 square meters of the title of the building are owned by the plaintiff among the above site are not disputed between the parties.

Defendant 1’s legal representative held 27 square meters of the above site and 19 square meters of the building and 19 square meters of 19 square meters of 27 square meters of the above ground site. The above site was sold by auction, and the Plaintiff acquired ownership of the above site as a result of the successful bid. Thus, the Defendant’s assertion that the above ground was acquired as to the above site portion, No. 1, No. 2, No. 3, and No. 2, No. 3, and No. 1, No. 4, and the purport of the above building’s assertion that the above building was not established after the above building’s new construction of the building and No. 5, No. 27 square meters of the above ground, and No. 1, No. 27 of the above building and No. 1, No. 1964, Dec. 7, 1964.

Therefore, in this case where it is not recognized that Defendant 1 has the right to possess the above land portion, the defendant is obligated to remove the above building owned without the right on the ground and order the site to be clarified.

(2) As to claims against Defendant 2, 3, 4, and 5:

The plaintiff's attorney, as a main cause of claim, asserts that among the 1st 8th 7th Hunbbes on the above building owned by the plaintiff, Defendant 2 among the 1st 8th Hunbbes on the above building owned by the plaintiff, the 3th Hunbbes on the building indicated in the annexed drawing (1) ; Defendant 5, the 3th Hunbbes on the building indicated in the annexed drawing (2) ; Defendant 5, the 1th 2th Hunbbes on the building indicated in the above drawing (3) ; Defendant 4, and the 4th Hunbbes on the ground indicated in the drawing (5) ; and he illegally occupied the building site portion; and the above defendants' attorney can not be allowed to file a lawsuit against the above defendants based on the same cause of claim as this case and the judgment against the plaintiff against the plaintiff was final and conclusive based on the judgment against the plaintiff 1 and the above 2th 97th Hunbbes on the ground of appeal.

Next, the plaintiff 2, 4, and 5 are the ancillary reasons for the plaintiff 1's claim. The plaintiff transferred the above right of lease to the non-party 1, the non-party 1, the owner of the above building 1, the non-party 8, the non-party 1, the non-party 5, and the plaintiff transferred the above right of lease to the non-party 5, and the plaintiff transferred the above right of lease to the non-party 1, the non-party 5, the non-party 1, the non-party 2, the non-party 1, the non-party 4, the non-party 1, the non-party 6, the non-party 1, the non-party 2, the non-party 9, the non-party 1, the non-party 2, the non-party 3, the non-party 1, the non-party 9, the non-party 1, the non-party 2, the non-party 9, the non-party 1, the non-party 1, the non-party 1, the plaintiff 2, the plaintiff 1, the defendant 3 (the defendant 1, the defendant 1, the defendant 2.

The above Defendants’ legal representative asserted that even if the Defendants transferred each of their respective rights of lease to Nonparty 5, it is null and void without the consent of Defendant 1, the lessor, but even if the act of lease transfer without the consent of the lessor is an act of lease transfer, it shall be valid in the parties concerned. However, the act of transfer cannot be set up against the lessor, and the lessor shall be able to terminate the lease contract on its ground. Accordingly, the above assertion cannot be accepted.

Then, the above defendants' legal representative stated that the above lease transfer contract is a false statement that the above leased building should be immediately removed, and since the above defendants' legal representative concluded it, it is alleged that the above defendants cancel their declaration of intention by fraud, but it is not acceptable to accept the statement of Eul evidence No. 7 (Declaration) and the testimony of non-party No. 6 of the trial witness as well as the evidence sufficient to recognize it, without trust.

(3) Consultations

Therefore, Defendant 1 removed the above building owned on the above site and ordered the site. Defendant 2 to remove the building site of the above building, Defendant 2 shall be ordered to dismiss the building site of 3 square meters in the annexed drawing (1). Defendant 2 shall be ordered to remove 1 square meters in the annexed drawing among the above building; Defendant 4 shall be obligated to order 1 square meters in the annexed drawing (3) of the above building; Defendant 4 shall be the same part among the above building; and Defendant 4 shall be the same 4 square meters in the annexed drawing (5) of the above building; thus, Defendant 5's claim against the above Defendants shall be accepted as reasonable; Defendant 5's claim against the above Defendants shall be dismissed; Defendant 1 and the plaintiff's appeal against Defendant 5 shall be dismissed pursuant to Article 384 of the Civil Procedure Act; Defendant 2, 4, and Article 9 of the above Act shall be revoked by applying Article 98 of the above provisional execution. The above part of the appeal against Defendant 9 of the above building shall be justified.

Judges Cho Jong-dae (Presiding Judge)