Cases of denying the establishment of legal superficies

Since the plaintiff acquired the ownership of the building site from Gap after he acquired the ownership of the building site from Gap, the defendant cannot acquire legal superficies for the building site.

Article 366 of the Civil Act

Supreme Court Decision 65Da1418, 1419 delivered on February 4, 1965 (Supreme Court Decision 1960Da1368 delivered on July 6, 1965, Supreme Court Decision 65Da907 delivered on July 6, 1965 (Supreme Court Decision 13Da366(7) of the Civil Act)

The Bank of Korea, Inc.

Defendant 1

Defendant 2 and three others

Suwon Branch Court of Seoul District Court (75Gahap75)

All appeals by the defendants and incidental appeals by the plaintiff are dismissed.

The costs of appeal due to the defendants' appeal shall be borne by the defendants, and the costs of appeal due to the plaintiff's incidental appeal.

Only under paragraph (1) of the original judgment may be provisionally executed.

With respect to the plaintiff, the defendant 1 shall remove 12 square meters per Suwon-dong 8-2, 8-2, 1, 1, 9, 25-7, 1, 1, 1, 1, and 25-7, 25-7, 1, 1, 1, and 25-2, 2, 8-2, 2, 3 and 4 shall move out from 9 square meters per 8-2, 8-2, 25, 25, 12, 10 of the above 25-7, 25, 12, 10, 10, and 10, from 9, and 5, the defendant 5 shall move out from 1, 1,25, 25, 2, 3, 5, 2, 5, 2, 5, 2, and 5, in sequence, among the above 25-7, 25-7, 3 and 5, 2, 5, 3.

Defendant 1 and 2 have revoked each part of the original judgment against the said Defendants and dismissed the Plaintiff’s claim corresponding to this part, and the remaining Defendants have revoked the original judgment. The Plaintiff’s claim against the said Defendants is dismissed, and the part against Defendant 1 in the original judgment against the Plaintiff is revoked. Defendant 1 has ordered to remove the Plaintiff’s claim against the said Defendants. Defendant 1 has ordered to remove the Plaintiff’s claim against the said Defendants and deliver the land for the case.

1. According to each description of evidence No. 1, No. 1, No. 2 (O. 1), each of the lands listed in the separate sheet No. 5 (O. 2) can be recognized that the ownership transfer registration was completed on the ground of April 30 of that year with the name of the plaintiff on June 14, 1973, each of the above lands shall be presumed to be owned by the plaintiff. Meanwhile, considering the appraisal results of No. 2, No. 1, No. 2, and No. 1 (O. 1), the lower court’s results of on-site verification, and all of the arguments, Defendant No. 1 owned the above land No. 2, No. 3, No. 5 (O. 2, No. 5) connected to each of the above lands listed in the separate sheet No. 1, No. 2, No. 96,7, and No. 166) connected to each of the above lands listed in the separate sheet No. 2, No. 1, 266, and 4).

The Defendants: (a) both the above-mentioned and the above-mentioned building and its site were owned by Defendant 5; and (b) Defendant 1 acquired only the above building; (c) thereafter, Defendant 1 asserted that he had legal superficies against the above building site; (d) but according to each of the above-mentioned evidence Nos. 1, 2, 2-1 and 2-2, Defendant 1 may recognize the fact that the Plaintiff acquired the ownership of the above building from Defendant 5 as of December 29, 1973, after the Plaintiff acquired the ownership of the above building due to the successful bid (as stated earlier by Defendant 3, the building No. 2 was transferred later to Nonparty 2). Therefore, there is no ground for defense by the above Defendants.

Therefore, in this case where Defendant 1, 5 and Nonparty 2 are not recognized to have a legitimate title to possess each part of the land owned by the said Plaintiff, and Defendant 1 is deemed to have a duty to remove each part of the attached drawing indication (A) among the above building Nos. 1, and Defendant 5 is obligated to remove the above building No. 1, and deliver the land to the Plaintiff. Meanwhile, Defendant 2, 3, 4, and 5 are occupying the above building Nos. 1 and 2, each of which is occupied by the said Defendants, unless it is asserted and proved that the owners of the above building Nos. 1 and 2 occupied by the said Defendants have a legitimate right to oppose the Plaintiff, it shall be deemed that they interfere with the exercise of the Plaintiff’s right to own land by occupying each of the above building sites. Therefore, Defendant 1 has a duty to leave each of the above parts

2. In addition, the plaintiff sought removal of the above part of the building No. 1 from the building No. 1 to the defendant 1 from the building No. 1 to the 2nd 4th Gabbp, the building No. 2, and the delivery of the building site to the defendant No. 1, and the removal from the part No. 1 among the above building No. 1 to the defendant No. 2, but it is evident that the above part of the building No. 1 is constructed on the road site not owned by the plaintiff, even if it is based on the plaintiff's assertion itself, and there is no assertion and proof to recognize that the plaintiff has a title to the road site (the above part No. 1). Thus, the plaintiff's claim against the plaintiff No. 2 against the defendant No. 1 for removal of the above part cannot be viewed as a claim against the plaintiff No. 2, the above part of the building's claim against the plaintiff No. 2, as well as the above part of the building No. 2, since it is close to the plaintiff's favor. 1.

However, as to the above building, although the provisional registration of Defendant 3 was completed at the time when the above building was owned by Defendant 1, the plaintiff filed an application with the court for provisional disposition prohibiting disposal of the above building and completed its execution. Thus, even if the defendant 3 filed an application for provisional disposition against the said Defendants for provisional disposition and again filed an ownership transfer registration of the above building on the provisional registration, it cannot be asserted that the above change in ownership cannot be asserted against the plaintiff. Thus, the plaintiff's claim for provisional registration as to the above building against the defendant 3 was made on April 26, 1974 that the provisional registration was made on the provisional registration against the above defendant 1, 2, 1, 2, 3, 4, and 5, and that the above provisional registration was not made on the provisional registration against the defendant 1, 1974.

Therefore, Defendant 1 is obligated to remove the portion of the above building No. 1, which is 6 square meters of the size of the drawing(A) and 6 square meters of the building site. Defendant 2 is obligated to leave from the above part of the building No. 1, 6 square meters of the size of 6 square meters of the building site. Defendant 3 and 4 are obligated to leave from the above part of the building No. 2, 9 square meters of the size of drawing(C). Defendant 5 is obligated to remove the above 1 building No. 5 square meters of the building site and deliver 5 square meters of the building site and remove 5 square meters of the building site from 3 square meters of the size of the attached drawing(d) among the above building No. 2. Thus, the plaintiff's main claim against Defendant 1 and 2 cannot be accepted within the scope of the above acknowledged, and the remaining claims against Defendant 1 and 2 shall be dismissed, and the judgment of the court below is justified and there is no ground for appeal by the defendants and the incidental appeal shall be dismissed.

[Attachment]

Judges Lee Chang-chul (Presiding Judge)