Whether the legal superficies under customary law can oppose the new purchaser of the land without registration.

Since superficies acquired through custom is the acquisition of real rights by law, it is not required to register the acquisition, and even if there is a change in the ownership of the site which is the burden of the superficies, the superficiary can claim the superficies to the new site buyer without registration.

Articles 187 and 279 of the Civil Act

Supreme Court Decision 67Da698 delivered on June 27, 1967 (Supreme Court Decision 698Da 698 delivered on June 27, 196, and Article 187(18) of the Civil Act

Plaintiff

Defendant

Seoul Central District Court (69Da9201, 70 Ghana6112) in the first instance trial

1. The plaintiff's appeal as to the main lawsuit is dismissed.

2. The portion of the original judgment against the counterclaim defendant in respect of the counterclaim shall be modified as follows:

The counterclaim defendant (the plaintiff) pays 2,385,285 won to the counterclaim plaintiff (the defendant).

The remaining claims of the Lessee (Defendant) are dismissed.

3.The costs of appeal as to the principal claim shall be borne by the plaintiff, and the costs of counterclaim shall be borne by the defendant, and the remainder shall be borne by the plaintiff, respectively, in the first and second instances.

The plaintiff's attorney shall fix the amount of the superficies on the ground of 10-14 large 90 square meters (No. 110 square meters on the register) owned by the plaintiff, 460 won per ordinary month for the year 1967, 536 won per ordinary month for the year 1968, 613 won per ordinary month for the year 1969, 6130 won per ordinary month for the year 1969. The defendant's counterclaim is the defendant's judgment that the costs of lawsuit shall be borne by the defendant, and the plaintiff shall pay 3,719,988 won to the defendant as a counterclaim.

The costs of lawsuit are assessed against the plaintiff and a declaration of provisional execution.

The plaintiff's attorney shall revoke the part against the plaintiff from among the original judgment. The part of the land of the superficies owned by the plaintiff for the purpose of owning the building in the annexed list on the site stated in the purport of the claim owned by the defendant, the portion in 1967 shall be 460 won per month for the purpose of owning the building in the annexed list, 536 won per month for the year in 1968, 536 won per month for the year in 1968, and 613 won per month for the year in 1969. The defendant's counterclaim shall be dismissed.

The costs of lawsuit are assessed against the defendant in both the first and second trials.

1. We examine the main lawsuit.

In full view of the following facts: (a) the Plaintiff owned the building listed in the separate sheet on the ground of approximately 14 and about 90 square meters (No. 110 square meters in the registry) in Jung-gu Seoul Special Metropolitan City, Jung-gu, Seoul, which is owned by the Defendant, on the ground of 10-14 and approximately 90 (No. 110 square meters in the registry) (hereinafter referred to as this site); (b) there is no dispute between the parties; and (c) as it is an official document, the Plaintiff’s entries in the evidence No. 1 (No. 3) and No. 4 (Registration Form), which are presumed to be genuine, were owned by Nonparty 1; and (d) the above building was originally owned by Nonparty 1; (e) the above building was purchased by the public auction on September 18, 1964 by the head of the tax office of Dongdaemun-gu, Seoul Special Metropolitan City, which was owned by the said Nonparty; and (e) the ownership transfer registration for this building was completed on October 6 of the same year.

Therefore, the plaintiff was owned by the above non-party. The above building was purchased on September 18, 1964 by the public sale and the price of the building was paid in full and acquired the ownership. Thus, since superficies acquired through custom of this building is acquired by law, it does not require registration of acquisition. However, in the case of disposal, even if the ownership of the building is changed without registration, the person holding superficies can assert the superficies without registration. Thus, even if the defendant acquired the ownership of the building from the above non-party as above on September 29 of the same year after the plaintiff acquired the superficies on this building, the plaintiff can assert the above superficies against the defendant. Accordingly, in light of the result of the examination by the court below and the result of the appraisal by the non-party 2, it is reasonable to determine otherwise as the result of the appraisal of the non-party 1 in attached Form 196 and the result of the appraisal by the non-party 2 in attached Form 196.

2. We examine the counterclaim.

(1) As recognized in the principal lawsuit, the Plaintiff has the superficies on the site of this case, and thus, is obligated to pay the land rent to the Defendant.

(2) As to the claim for the payment of KRW 3,719,98 from November 1, 1964 to December 1969 on the site of this case, the plaintiff asserted that the claim for the rent before May 21, 1970, which was the first three years before the first counterclaim, had already expired, since the claim for the rent before May 21, 1967, which was the first three years from May 21, 1970, was unfair, and thus, the prescription period should expire if the claim for rent is not exercised for three years. According to the records of this case, it is obvious that the defendant filed a counterclaim on May 21, 1970, and therefore, it is obvious that the defendant had no other assertion as to the cause of interruption or suspension of prescription on the above rent claim, and thus, the defendant's claim for the unjust enrichment or the unjust enrichment should not be exercised for three years prior to the expiration of the prescription period. Thus, the plaintiff's claim for the payment of unjust enrichment as above should not be completed.

(3) Therefore, from May 21, 1967 to December 31, 1969, the Plaintiff’s annual rent for the land in this case is identical to that of the principal suit as stated in the corresponding column for calculation sheet. Therefore, the Plaintiff’s annual rent for the land in this case was 2,385,285 won [ = 441,285 won from May 21, 1967 to December 31, 1967 + 466.6 x 907 + 6.6 x 906.6 x 90 x 1/31) + 864,00 won for the land in 1968 + 90 x 1969 x 192) x 2085 won for the land in this case to be paid to the Defendant (i.e., the portion below the above amount to be paid to the Defendant).

3. If so, it is reasonable to determine the rent for the principal claim as above recognition. Accordingly, the original judgment with respect to the principal claim is just, and the plaintiff's appeal is without merit, and thus, it is dismissed. The defendant's counterclaim claim is reasonable within the above recognition scope, and the remainder of the claim is accepted and dismissed. The original judgment which differs in this conclusion is unfair, and the plaintiff's appeal is reasonable within the above recognition scope, and the part against the plaintiff in the original judgment is to be changed, and the costs of appeal against the principal claim are borne by the plaintiff, who is the losing party, and the costs of appeal against the principal claim are borne by the plaintiff, and by applying Articles 89, 92, and 93 of the Civil Procedure Act with respect to the burden of the counter-performance cost,

Judges Kim Yong-chul (Presiding Judge)