[1] Whether the purchaser who acquired the ownership of a building by auction acquires the superficies automatically (affirmative in principle), and whether the landowner may oppose the transferee of the superficies on the ground of the fact of the delay of the former superficies (negative)

[2] The duration of statutory superficies under customary law and the standard for determining whether a building is “satisfyed” under Article 280(1)1 of the Civil Act

[1] Article 69 subparagraph 4 of the Registration of Real Estate Act, Articles 186 and 366 of the Civil Act / [2] Articles 280, 281 (1), and 366 of the Civil Act

[1] Supreme Court Decision 84Meu1578, 1579 Decided February 26, 1985 (Gong1985, 469), Supreme Court Decision 95Da52864 Decided April 26, 1996 (Gong1996Sang, 1702) / [2] Supreme Court Decision 85Da2275 Decided September 9, 1986 (Gong1986, 1301), Supreme Court Decision 96Da4080 Decided January 21, 1997 (Gong1997, 608), Supreme Court Decision 2006Da54651 Decided June 26, 2008

Plaintiff

Defendant 1 and two others (Attorneys Han Han-chul, Counsel for the defendant-appellant)

Jeju District Court Decision 2012Na2224 decided May 15, 2013

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Jeju District Court Panel Division.

The grounds of appeal are examined.

1. As to the claim for extinction of legal superficies under customary law

In cases where the owners of a building site and its ground buildings belonging to the same owner are different from each other through sale and purchase, the owner of the building shall obtain legal superficies on the site, unless there is a condition to remove the building, and on the other hand, the purchaser who acquired legal superficies from the person who acquired the superficies to own the building by auction sells the building at auction under the condition of sale such as the removal of the building after purchase, etc., shall acquire the above superficies as a matter of course, except in special circumstances, such as where the purchaser who acquired the superficies from the person who acquired the superficies to own the building sells the building at auction. In addition, an agreement on land rent, such as the land rent and its due date, can be registered but set up against a third party. Thus, unless the registration of land rent is made, the owner of the building shall not set up against the transferee of the superficies on the ground of the fact of the delay of the former superficies (see, e.g., Supreme Court Decisions 84Meu1578, Feb. 26, 1985; 95Da5264, Apr. 26, 1996).

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim against the plaintiff and the defendant 3 that the superficies under the above customary law was extinguished on the ground that the non-party 2 owned both the land of this case and the buildings of this case, and the non-party 2 completed the registration of transfer of ownership as to the buildings of this case No. 2 on March 19, 191, and the registration of transfer as to the buildings of this case No. 3 on April 2, 191 on the ground of each donation, and the plaintiff acquired the superficies under the customary law for owning each of the above buildings. The defendant 3 and the non-party 1 purchased the buildings of this case No. 2 and 3 at the auction procedure in successive order, and without the registration of the superficies under the above customary law. The court below rejected the plaintiff's claim against the plaintiff's claim against the plaintiff that the superficies had been extinguished on the ground that there was no evidence to prove that the rent agreed upon by Jeju District Court 2008Da169666 was registered, or that the plaintiff had acquired the superficies under the customary law of this case.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the registration of legal superficies and their land rent, and the other party to the claim for the extinguishment of superficies, etc.

2. As to the extinction due to the lapse of the duration of statutory superficies under customary law

Unless there are special circumstances, the provisions concerning superficies under the Civil Act shall apply mutatis mutandis to legal superficies under the customary law. Thus, when the parties concerned have not separately determined the duration of legal superficies under the customary law, the above period shall be the period stipulated in the subparagraphs of Article 280(1) of the Civil Act pursuant to Article 281(1) of the Civil Act (see, e.g., Supreme Court Decisions 85Meu275, Sept. 9, 1986; 2006Da54651, Jun. 26, 2008). Article 280(1) of the Civil Act provides that when the maximum duration of superficies is for the purpose of owning a building with stone, stone, brick, or any other solid building similar thereto, the above period shall be 30 years (No. 1); when the parties concerned owns a building other than the above subparagraph 1, 15 years (No. 2); when the building is for owning it, it shall be determined whether it has physical and chemical difficulty or physical difficulty, etc. 90.

In light of the records, the Plaintiff asserted to the effect that the statutory superficies under the customary law for the possession of buildings Nos. 2 and 3 in the instant case, through a preparatory document dated February 6, 2012, had already been extinguished upon the lapse of 15 years, which is the duration stipulated in Article 280(1)2 of the Civil Act, and that the preparatory document was stated on May 18, 2012 at the date of the first instance trial of the first instance. Meanwhile, as seen earlier, the statutory superficies under the customary law for the instant building No. 3 in the instant case were established on April 2, 191.

Therefore, we need to examine and determine whether the building Nos. 2 and 3 of this case is a solid building as provided by Article 280(1)1 of the Civil Act, and then whether the statutory superficies under the customary law for its possession has expired due to the expiration of the duration of the statutory superficies.

Nevertheless, without making any decision on the plaintiff's above assertion, the court below rejected the plaintiff's claim for removal of the building, claim for delivery of land, and claim for withdrawal on the ground that defendant 1 acquired legal superficies under the customary law for the ownership of the building Nos. 2 and 3 of this case with respect to the land of this case. Thus, the court below erred in the misapprehension of legal principles as to the extinguishment due to the expiration of the duration of legal superficies under the customary law

3. Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)