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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Determination on the cause of the claim
A. According to the purport of Gap evidence No. 1 and the entire pleadings, the defendant occupies the above land by owning a building listed in the attached Table No. 1 (hereinafter "the building owned by the defendant") owned on the ground of the land listed in the attached Table No. 2, which is owned by the plaintiff (hereinafter "the land of this case").
B. According to the above facts, the defendant is obligated to remove the building owned by the defendant and deliver the land of this case to the plaintiff, barring special circumstances.
2. As to the judgment on the defendant's defense, the defendant asserts that the defendant has the right to possess the land of this case as legal superficies under customary law, and according to the evidence Nos. 1, B, the above court rendered a judgment on December 9, 2016 that "in case where land and building belonging to the same person belongs to different owners due to compulsory auction, the defendant is the legal superficies on the land of this case and the plaintiff is paid with 1,521,90 won per annum from December 2, 2015 to the day when the plaintiff transfers the land of this case or loses its ownership, as the defendant has the right to possess the land of this case, the defendant has the right to possess the land of this case."
In addition, as at October 24, 2017 when the Plaintiff filed the instant lawsuit, the Defendant did not delay the payment of rent for at least two years, and the Defendant deposited the land rent from December 2, 2015 to November 13, 2017, and the land rent from November 13, 2017 to December 13, 2017 to the date “from November 2, 2015 to December 13, 2017,” and the land rent from November 14, 2017 to December 1, 2017 to the date from November 14, 2017 to the date from which the Plaintiff deposited the Plaintiff as the principal and paid the land rent for two years. As such, the Plaintiff cannot file a claim against the Defendant for the extinction of the superficies on the ground of delinquency in payment of the land rent.
(Supreme Court Decision 2012Da102384 Decided August 28, 2014).3.