Requirements for setting up against the legal superficies under customary law at the time of enforcement of the Gu Civil Act

Legal superficies under customary law cannot be set up against a third party without registration in cases of acquisition under the provisions of law or acquisition at the time of the enforcement of the former Civil Act, which is prior to the enforcement of the current Civil Act. Therefore, if a person who purchased a site and completed the registration of ownership transfer, he/she cannot set up against the said person with legal superficies

Article 186 of the Civil Act, Article 366 of the Civil Act, Article 176 of the Gu Residents Act

Plaintiff

Defendant 1 and one other

Seoul High Court Decision 65Na1850 delivered on September 28, 1966

The appeal is dismissed.

The costs of appeal shall be borne by the defendants.

The defendants' grounds of appeal are examined.

According to the judgment of the court below, since the building was purchased on January 10, 1958 and the registration of transfer was made on the 16th of the same month from the non-party who owned the building on the site and its ground without any condition to remove it by Defendant 2, the defendant acquired the legal superficies under customary law on the site, and since the acquisition of the real right was at the time of acquisition by law or the enforcement of the current Civil Code, it cannot be asserted against the third party without registration. Thus, if the plaintiff purchased the building site from the above non-party on May 12, 1964 and completed the registration of transfer of ownership on July 23, 1964, it cannot be asserted against the above non-party with the legal superficies under customary law. Thus, the judgment of the court below with the same purport is just, and it is not without merit.

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

Justices of the Supreme Court Dog-gu (Presiding Judge) Dog-Jak and Mag-gu Mag-gu