A. The burden of proving special circumstances, such as that there has been an agreement to remove the building in the establishment of the statutory superficies under customary law

(b) Whether a person holding a statutory superficies under customary law is entitled to claim the superficies against the owner of the target land or the subsequent purchaser without registering the superficies;

(c) Whether a person who acquired a building with statutory superficies has a claim to implement procedures for registration of creation of legal superficies against the landowner;

(d) Request the owner of a site to remove the building and the principle of good faith to a person who takes over the building from the owner of a building with legal superficies and wishes to take over the building up to the superficies;

A. Unless special circumstances exist, such as that the owner of a building has agreed to remove the building when the owner of the building or the land belongs to the same owner but becomes different from the owner of the building due to sale and purchase of the building or for other reasons, the burden of proving the existence of special circumstances, such as the owner of the building has to obtain superficies for the building, and there has been an agreement to remove the building, shall be the party asserting the existence of such circumstances.

B. Since superficies under customary law are not the acquisition of a real right by a juristic act, but the acquisition of a real right by customary law, the acquisition of a superficies takes effect without requiring registration, and the legal superficies under customary law may claim the above superficies without registration against the landowner at the time when the superficies is acquired by the validity as a real right or against a third party who acquired the ownership by transfer of the ownership.

C. In a case where the owner of a building who acquired legal superficies transfers the building without filing for registration of the establishment of legal superficies, barring any special circumstance, the owner of the legal superficies is obligated to perform the procedure of registration of transfer to the transferee of the building after filing for registration of the establishment of the superficies. Therefore, the transferee of the building may, in sequence, claim the first owner of the legal superficies who was the owner of the building to perform the procedure of registration of creation of legal superficies.

D. It is not permissible in light of the principle of trust and good faith for a person who takes over a building from the owner of a building with statutory superficies to take over the building and who is obligated to take over the building from the owner of the building to take over the superficies, seeking removal of the building and delivery of the site based on the ownership, as a claim against the owner of the building.

a.B.(d)Article 279, Article 366 of the Civil Code; Article 187(c) of the Civil Code; Article 404 of the Civil Code; Article 2 of the Civil Code;

A. Supreme Court Decision 79Da2000 delivered on July 8, 1980, 70Da2245 delivered on September 11, 1984, Supreme Court Decision 70Da2576 delivered on September 26, 197, Supreme Court Decision 80Da2873 delivered on September 11, 1984, Supreme Court Decision 80Da2873 delivered on September 8, 1981, Supreme Court en banc Decision 84Da1131, 1132 delivered on April 9, 1985, Supreme Court Decision 85Meu2203 delivered on May 26, 1987

[Defendant-Appellee] Plaintiff 1 et al.

Defendant

Seoul Civil District Court Decision 85Na3342 delivered on December 10, 1986

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

As to the Grounds of Appeal:

Unless there exist special circumstances, such as that there was an agreement among the owners of land or a building to remove the building when the owners of land or a building belong to the same owner, but became different due to sale and purchase of the building or for any other reason, the owner of the building shall acquire the superficies for the building (Supreme Court Decision 79Da2000 Decided July 8, 1980). This superficies is not a acquisition of a real right due to a juristic act, but a acquisition of a real right to real estate under customary law, so it takes effect without requiring registration, and the superficies under customary law can be asserted without registration against the owner of land or a third party who acquired the ownership from the owner of the building at the time of the acquisition of the superficies by virtue of its validity as a real right (Supreme Court Decision 70Da2576 Decided January 26, 197). In addition, if the owner of the building who acquired the statutory superficies transfers the building without agreement to establish the statutory superficies, the transferee of the building is obligated to claim for the first procedure to transfer the building to the owner of the building by order.

In addition, it is a party member's opinion that it is not permissible under the principle of trust and good faith to allow a person who is obligated to take over a building from the owner of a building with statutory superficies to take over the building and take over the building site based on the ownership. It is a party member's opinion that it is not permissible to take over the building of this case as a claim against the right holder (see Supreme Court Decision 84Meu131,1132, Apr. 9, 1985). According to the original judgment, the court below held that the land at issue in this case and the building were owned by Nonparty 1, but only the building was transferred to each other after the change in the owner of the land and the building were transferred to the non-party 2, and that the land at issue is owned by the plaintiff, and that the building at issue is owned by the defendant, and that the non-party 2 acquired the building of this case together with the right to take over the building of this case, and thus, it is not permissible for the defendant to take over the above construction and the building at issue of the right.

In addition, the above determination by the court below is certain, or it is clear that it was made within the scope based on the defendant's argument, and there is no error of law in violation of the principle of pleading such as the theory of lawsuit and the principle of the right to dispose of the parties, and the theory that the non-party 1, who was the original owner, entered into a special agreement with the transferee at the time of the transfer of the building not to create a customary legal superficies between the transferee and the transferee is the first good in the court of final appeal

In addition, under the facts established by the court below, even if the defendant did not complete the procedure for the registration of the transfer of superficies, the plaintiff cannot exercise the right to remove the building and transfer the site against the defendant. Accordingly, the defendant can assert the reason as a defense, and the defendant can ultimately oppose his own possession against the plaintiff who is the land owner. Therefore, the court below is correct in holding that the plaintiff cannot claim for the payment of damages under the premise that the defendant's possession is illegal possession, aside from seeking the return of unjust enrichment from the use of the site occupation by the defendant.

Therefore, this appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-ju (Presiding Justice)