A. In order to acquire a statutory superficies under customary law due to a compulsory auction, it is not required that the land and the building on land continue to be the same owner during the period from the time of seizure (provisional seizure) for compulsory auction to the time of a successful bid, but is sufficient if they belong to the same owner at the time of the successful bid.

B. Since the possession of a site based on the statutory superficies under customary law is justifiable, there is no room to establish a claim for damages premised on an illegal possession.

A. In order to acquire customary statutory superficies due to a compulsory auction, it is not required that the land and the building on the ground continue to be the same as the owner during the period from the time of seizure (provisional seizure) to the auction for compulsory auction, but is sufficient if it belongs to the same owner at the time of the auction.

B. Since the possession of a site based on the statutory superficies under customary law is justifiable, there is no room to establish a claim for damages premised on an illegal possession.

Articles 366, 366 (proviso), and 750 of the Civil Act

Plaintiff

Defendant

Busan District Court Decision 70Na670 delivered on June 1, 1971

The appeal shall be dismissed.

The costs of appeal are assessed against the plaintiff.

Judgment on the Plaintiff’s Grounds of Appeal (1,2,4)

In a case where the land and buildings belonging to the same owner are different from each other by a compulsory auction, if the owner of the building has no condition to remove the building, in particular, the owner of the building shall obtain the statutory superficies in customary for the building on the land, and from the time of seizure for compulsory auction (or from the time of provisional seizure in case of provisional seizure prior to such seizure) to the time of the auction, it does not require that the land and the buildings on the land belong to the same owner, but it is sufficient if the land and the buildings on the land belong to the same owner at the time of the auction. Under the purport of the above, the court below held that the building site was owned by the defendant at the time of the auction by a compulsory auction, and the defendant acquired the statutory superficies in customary for the building on the building site as the owner of the building, and therefore, the judgment holding that the plaintiff's claim for removal of the building on the ground of this case is justified, and therefore, the judgment of the court below, which has no grounds for appeal, is just, and cannot be accepted as a legitimate opinion contrary to the original judgment.

Judgment on the third ground for appeal

According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's assertion on this point as follows: the defendant has properly occupied the building site based on customary statutory superficies, and the plaintiff's claim for damages is claiming compensation from the rent party on the ground that the defendant illegally occupied the building site; however, the defendant uses the building site on the part of the plaintiff, and even if the defendant is obligated to pay the rent, he has no obligation to pay the rent. Therefore, according to the records, the plaintiff's assertion on this point is just based on the legal superficies under customary law that the defendant occupies the building site as seen above, and if so, there is no room to establish the plaintiff's claim for damages premised on the defendant's illegal occupation. Therefore, the judgment of the court below is just and there is no error in the misapprehension of legal principles as to the claim for damages, and it cannot be adopted.

Therefore, the appeal is dismissed as without merit. The costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges.

Supreme Court Judges Yang Byung-ho (Presiding Judge) (Presiding Judge) and Kim Young-young