(영문) 수원지방법원 2017.03.21 2015나41760

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(영문) 수원지방법원 2017.03.21 2015나41760

수목사용료

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1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. The facts of recognition are as follows: (a) the Defendant acquired ownership of the land by completely paying the sale price on March 26, 2013 by owning trees on the instant land on July 18, 200; (b) the ownership of buildings or other structures or trees on July 18, 200 due to superficies contract on July 18, 200; (c) the ownership of the entire land, the duration of the land: from July 18, 200 to 30 years; and (d) the registration of creation of superficies that are not written on the land rent and time of payment; (c) the Plaintiff was a purchaser of the Lwon District Court branch E, F, and the compulsory auction procedure for real estate on the instant land, which was commenced by the Plaintiff on March 26, 200; and (d) the Defendant did not own any trees on the instant land on the instant land until now; or (d) the purport of the entire number of the land on the instant land including the evidence number No. 125, from March 15 to 26, 2015.

2. The Plaintiff asserts that the Defendant, who is the person holding the superficies of the instant land, is liable to pay the Plaintiff the annual land rent of KRW 2,616,952 from March 26, 2013 to March 25, 2014, and delay damages.

In order to claim the payment of the land rent because the payment of the land rent is not an element of the superficies, the parties shall have an agreement on the land rent between them, or the land rent shall be determined by a court as it constitutes legal superficies (Article 305(1), Article 366 of the Civil Act). In this case, there is an agreement between the plaintiff and the defendant on the land rent.

There is no evidence to acknowledge that the defendant's superficies constitutes legal superficies and that the rent has been determined by the court.

Furthermore, Article 69 of the Registration of Real Estate Act provides that when registering the creation of superficies, land rents and time for payment shall be applied to the grounds for registration.

참조조문

-민법 제305조 제1항

-민법 제366조

-부동산등기법 제69조

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