(a) Requirements for creation of legal superficies under customary law;

(b) The case holding that Gap cannot claim legal superficies under customary law as to the portion of land, if Gap completed the registration of transfer of ownership in the name of the party in the name of the party in the first place with respect to the share of land and the building on the ground, and as to the share of land, if Eul completed the registration of transfer of ownership in the name of the party in the second place with respect to the share of land and the building on the ground, while

(a) Customs statutory superficies shall accrue when each owner is different from the land owned by the same person and that above ground buildings are due to sale and purchase or other legitimate causes.

B. The case holding that if Gap, while holding a 1/2 share of the land and a building on the ground, in order to secure the loan obligation for Eul, he shall carry out the procedure for ownership transfer registration on the whole land in the name of Dong, and at the same time, he shall order the above building to order the above building, the ownership transfer registration on the above land share has been completed, but since the above building was an unauthorized building, it is not registered since only the above building had been registered without permission, and if the ownership transfer registration on the above land share was made in sequence, Byung did not belong to the ownership of the same land and the building at the time when he acquired the above land share, and as long as Eul agreed to transfer the ownership of the building to Eul and order it, Eul cannot claim legal superficies under customary law as to the above land share.

(b)Article 279 of the Civil Code;

A. Supreme Court Decision 79Da2000 Decided July 8, 1980 (Gong1980, 1294) decided Feb. 10, 1970 (Gong1984, 1641) (Gong1641)

Plaintiff

Defendant 1 and two others

Seoul Civil District Court Decision 91Na6961 delivered on October 1, 1991

All appeals are dismissed.

The costs of appeal shall be assessed against the defendants.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below established the building of this case on the land of this case owned by the plaintiff and the plaintiff's assistant intervenor (hereinafter only referred to as the intervenor) on the land of this case owned by the plaintiff and the non-party 1. The defendants occupy and possess some of them from the intervenor. On February 1, 1982, the intervenor performed the procedure for the registration of ownership transfer as to the whole of the building of this case in order to secure the loan obligation against the non-party 2 on the 1/2 share of the land of this case and the building of this case on the land of this case, the plaintiff and the non-party 1, and ordered to order the non-party 2 at the same time. The registration of ownership transfer was completed with respect to the above share of this case, but the building of this case was not registered yet because the non-party 3 and the plaintiff had the ownership transfer registration made in sequence with respect to the share of this case. Such fact-finding by the court below is proper, and there

2. Regarding ground of appeal No. 2

The customary statutory superficies arises when land and its ground buildings owned by the same person are different owners due to sale, purchase, or other legitimate causes. As seen above, at the time of the acquisition of the shares of the land of this case by Nonparty 3 or the plaintiff, the land and the buildings of this case were not owned by the same person. In addition, as long as the intervenor agreed to transfer the ownership of the building of this case to Nonparty 2 and to specify it, it shall be deemed that the intervenor is not in a position to assert the use of the land of this case against Nonparty 3 and the plaintiff for the purpose of owning the building of this case. Thus, the argument is groundless.

3. All appeals are dismissed, and the costs of appeal are assessed against the Defendants who have lost them. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)