In cases where the owner of a building constructs a new building on the ground and the owner of a land and a building changes according to the exercise of a repurchase right when the registration of a special agreement for repurchase has been completed on the site, whether the owner of the building acquires a customary statutory superficies (negative)

If a site owner newly constructed a building on the ground after the completion of the registration of a special agreement for repurchase on the site, the site owner shall be deemed to bear the potential obligation to transfer the ownership of the land as it is in the legal relationship at the time of the registration of the special agreement for repurchase from the time of the new construction to the repurchase, so it can be deemed that the site owner would be subject to the order to remove the building in the future, but it can be deemed that he had constructed the building. If the repurchase right holder exercises the right lawfully within the repurchase period, the limited real right already established, such as the mortgage of a third party, which is completed after the registration of the special agreement for repurchase, has already been completed, barring any special circumstance. Therefore, if the ownership of the land and the building varies according to the exercise of the repurchase right, the customary legal superficies for the building does not arise from the beginning.

Article 366 of the Civil Act

[Plaintiff-Appellant] Plaintiff 200Da27411 delivered on September 27, 2002 (Gong2002Ha, 2547)

Plaintiff (Law Firm Woo, Attorneys Park Jong-pon et al., Counsel for the plaintiff-appellant)

Korea Asset Management Corporation (Law Firm One, Attorneys White-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2009Nu35346 decided July 6, 2010

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

If a site owner newly constructed a building on the ground with a special agreement for repurchase registered on the site, the site owner may be deemed to bear a potential obligation to transfer the ownership of the land at the time of the special agreement for repurchase from the time of its new construction to the repurchase right holder as it is, so it can be deemed that the site owner would be subject to the order to remove the building in the future, but it can be deemed that he constructed the building (see Supreme Court Decision 94Da41072, 94Da41089, Dec. 22, 1994). Thus, it is reasonable to view that the land and the building for the purpose of the exercise of the special agreement for repurchase would be significantly different from the land and the building for the purpose of the exercise of the special agreement for repurchase, unless there is any special reason to the contrary.

For the reasons indicated in its holding, the lower court determined to the effect that, on the grounds indicated in its reasoning, even though Nonparty 1 and Nonparty 2, who newly built each of the instant buildings after the transfer of each of the instant lands and the registration of the instant repurchase agreement was made under an exchange agreement with a special agreement for repurchase without any building and the completion of the registration of the instant repurchase agreement, they cannot be deemed to have acquired customary statutory superficies for each of the instant buildings even though the owners of each of the instant lands and the instant buildings differ due to the repurchase of the instant building, and that the same applies to the Plaintiff who purchased each of the instant buildings through voluntary auction at

In light of the above legal principles and records, the above judgment of the court below is correct, and there is no error in the misapprehension of legal principles as to legal superficies under customary law, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

The court below held that each of the land of this case, which is State property from May 31, 2005 to February 6, 2007, is subject to the collection of indemnity under the main sentence of Article 51 (1) of the State Property Act, as a person who occupied, used, or profited from each of the land of this case without obtaining a loan, use, or profit-making permit, etc. as to each of the land of this case. In light of the relevant legal principles and records, the judgment of the court below is just and there is no error of law by misapprehending the legal principles as to Article 51 (1) of the State Property Act and the principle of excessive prohibition, as otherwise

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)