In the case of compulsory auction, the case recognizing legal superficies under customary law

In the case of compulsory auction, the owner of a building shall acquire legal superficies unless there is a condition to remove the building if the land and the building belonging to the same owner are different from each other by a successful bid, and the land and the building are not necessary to continue to be the same owner from the time of seizure for compulsory auction to the time of auction, and if the land and the building belong to the same owner at the time of auction, the owner of the building shall acquire legal superficies for the building.

Article 366 of the Civil Act

Supreme Court Decision 70Da1454 Delivered on September 29, 1970 (Supreme Court Decision 9713Da 9713, Supreme Court Decision 18NoDa319, Supreme Court Decision 366(18) 369 of the Civil Act)

Plaintiff

Defendant (Attorney Lee Dong-soo, Counsel for defendant-appellant)

may 4, 1971

Busan District Court Decision 69Da306 delivered on November 21, 1969

Supreme Court Decision 70Da1454 Delivered on September 29, 1970

The judgment of the first instance shall be revoked.

The plaintiff's claim is dismissed.

The total costs of litigation shall be borne by the plaintiff.

The defendant collected 10,00 won per month from March 15, 1969 to the completion of the collection from 17-17-5 and from 17-19 sites of the same 17-19 sites to the plaintiff, the defendant collected 31 square meters, 10 square meters and 10 square meters in the ship connecting each point of 17-2 square meters in the attached drawings (a)(c)(a)(a) of the factory and 44-2 square meters in the order of each point of 22 square meters in the attached drawings (a)(c)(a) of the factory.

Litigation costs shall be borne by the defendant.

A provisional execution may be carried out only under paragraph (1).

The same shall apply to the order.

According to the contents of the evidence No. 1 and the result of the examination by Nonparty 1 as a result of the examination by the expert witness of the court below, the fact that the registration of ownership transfer has been made in the name of the plaintiff at 17-1 site, Seo-gu, Busan, Seo-gu, Busan. The defendant is presumed to have been owned by the plaintiff at 31 square meters and at 17-5, and at 17-19 site, 2nd and 2nd and 2nd and 31th and 31th and above site (for the above 31th and above ground buildings, 31th and 2nd and 310th and 2nd and 2nd and 17-19th on the above site.

The plaintiff filed a claim for the collection of the above building on July 19, 1967, and the defendant's attorney acquired the ownership of the above building site. Thus, since the above building site and the above building were all owned by the defendant at the time of the successful bid, the defendant claimed that the above building site and the above building were acquired the legal superficies on the above building site, according to the contents of No. 2 and No. 3, which are not disputed in the establishment of the building site, the plaintiff won the auction as a result of the auction conducted by the non-party 2's application for compulsory auction. The building site and the above building were owned by the defendant. The building site and the above building at the time of the successful bid were owned by the non-party 3, while the non-party 2 was the owner of the building site at the time of the provisional attachment execution on July 19, 1967, and the owner of the above above building belongs to the non-party 4, and the ownership of the building site and the above above building belongs to both to the defendant at the time of the auction.

Even in the case of compulsory auction, unless there is any condition that the owner of the land and the building on the land belonging to the same owner would remove each building by auction, the owner of the building shall acquire the statutory superficies under customary law for the building on the land unless there is any condition that the building be removed. From the time of seizure for compulsory auction (or from the time of provisional seizure to the time of provisional seizure to the seizure) to the time of auction, if the land and the building belong to the same owner at the time of auction, the owner of the building shall acquire the statutory superficies for the building on the land, and as seen above, the above site and the building on the land were owned by the defendant all of the above site and the building on the land at the time of the auction, so the defendant shall acquire the statutory superficies under customary law for the building on the building site, so the plaintiff's claim for the removal of the building on this ground shall not be justified.

The plaintiff claims for damages from the day following the delivery of the building soar to the time when the removal of building is completed. Thus, as recognized above, the defendant properly occupies the building site with statutory superficies as to the building site as seen above, and the plaintiff's claim for damages from the rent-charging damages. Since the defendant illegally occupies the building site, the defendant uses the building site to the plaintiff, the defendant is obligated to pay the rent to the plaintiff, but it is recognized that there is no obligation to pay the rent from the rent-charging. (The plaintiff does not comply with the plaintiff's claim for damages by changing the above claim for damages into the ground area, and the plaintiff's claim for damages from this point is without merit.

Therefore, the plaintiff's claim for objection is dismissed, and the judgment of the court of first instance is unfair with its purport different from this, so it is revoked under Article 386 of the Civil Procedure Act and it is so decided as per Disposition by applying Articles 95 and 89 of the Civil Procedure Act to the burden of litigation costs.

Judges Sap-ho (Presiding Judge) the highest number of judges