[1] Whether statutory superficies under customary law is established in a case where land and buildings owned by the same person vary between owners due to sale and purchase or for any other reason, but it can be deemed that there exists an agreement between the parties as to the possession and use of the land (negative)

[2] The case holding that as long as a special contract between a seller and a seller is unable to perform its duty due to a cause attributable to the seller, the seller is obliged to remove the building without claiming legal superficies under customary law for the above building and deliver to the buyer any land without any restriction, if the building site was sold to B along with the land adjacent to the above building site, and even if the building site became different from the owner, the seller purchased the above site part again and concluded a special contract to transfer another land adjacent to the above land to B instead, the buyer had the intent to use the land without any restriction

[1] Article 366 of the Civil Code / [2] Article 366 of the Civil Code

[1] Supreme Court en banc Decision 2002Da9660 delivered on June 20, 2002 (Gong2002Ha, 1669)

Plaintiff

Defendant 1

Defendant 2

Seoul High Court Decision 2004Na43697, 2004Na43703 decided June 28, 2005

The appeal against Defendant 1 is dismissed. The appeal against the Plaintiff is dismissed. The costs of appeal are assessed against Defendant 2.

1. Whether the final appeal against Defendant 1 is lawful

According to the records and the reasoning of the judgment of the court below, there was no claim against Defendant 1 against Defendant 2 or against Defendant 2 against Defendant 1, and the court below did not render a judgment on this point.

Therefore, Defendant 2’s appeal against Defendant 1 is unlawful as it is not subject to appeal.

2. The grounds of appeal against the plaintiff are examined.

In customary statutory superficies, land and buildings owned by the same person vary between the owners due to sale and purchase of the land and the building on the ground, but it is recognized that allowing the building owner to continue to use the land unless there is a special agreement for the removal of the building. Therefore, if it is deemed that there exists an agreement between the parties as to the occupation and use of the land, it is difficult to recognize the statutory superficies under customary law (see Supreme Court en banc Decision 2002Da9660, Jun. 20, 2002).

After compiling the selected evidence, the court below acknowledged the facts as stated in its holding. The building and the land of this case were owned by friendly diagrams at the time of the sales contract, but there were different owners of the land and the building on the ground of the execution of the sale contract of this case. However, according to the special exchange agreement separately stipulated in the sales contract of this case, the court below (Counterclaim Plaintiff; hereinafter "the defendant") 3 purchased the land of this case from Defendant 1, which is the site of the building of this case, and instead, it did not err in the misapprehension of legal principles as to the seller's duty to remove the land of this case since it was intended to use the land without any restriction, which is the purchaser of the land of this case, and there was no error in the misapprehension of legal principles as to the seller's duty to remove the land of this case for reasons attributable to the defendant 3.

3. Therefore, the appeal against Defendant 1 by Defendant 2 is dismissed. The appeal against the Plaintiff is dismissed. The costs of appeal are assessed against Defendant 2, who is the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)