Criteria for determining whether the extension portion of the building is deemed to correspond to the existing building;

In the case of the extension of a building, whether the extended part is deemed to correspond to the existing building should be determined by considering not only the physical structure attached to the existing building, but also whether the extended part can be the object of separate ownership in the transaction with economic utility independent of the existing building in terms of its use and function.

Article 256 of the Civil Act

[Defendant-Appellee] Plaintiff 1

Defendant

Seoul High Court Decision 84Na815 delivered on December 21, 1984

The judgment below is reversed and the case is remanded to Seoul High Court.

The Plaintiff’s attorney’s ground of appeal is examined.

1. According to the reasoning of the judgment below, the court below found that the plaintiff constructed 10 reinforced concrete columns in accordance with the boundary of the above new building part while extending the new building part to the north of the above new building part of the existing building, and constructed 10 underground walls outside of the north wall of the existing building, and newly constructed reinforced concrete walls outside the building, and made 4 new walls in the new building part into the outside wall of the new building. In addition to the construction of new building part on the first floor and the second floor, the stairs constructed on the north end of the new building and the new building part was constructed as a passage for the newly constructed building, and the third floor was constructed as a house, and the new building part and the new building part was constructed as a new building building with the outer wall of the new building part of the new building and the new building constructed as a 134 square meters adjacent to the new building part of the new building and the new building part was constructed as a 258 square meters adjacent to the new building part, and it can be recognized that the new building part and the new building part was used as a new building part.

2. However, in the case of an extension of the building, whether the extension portion is deemed to correspond to the existing building should be determined by considering not only the physical structure attached to the existing building, but also the economic utility independent of the existing building in terms of its use and function, etc. whether the extension portion can be an object of separate ownership in the transaction.

In summary of the reasons why the court below determined that the extension portion of this case was consistent with the existing building, it can not be concluded that (1) the extension portion seems to be a single building because it was attached to the same side and north side of the existing building; (2) the extension portion and the extension portion through the other south floor of the existing building are allowed; and (3) the rooftop of the existing building is used as a passage, a model, and a rooftop floor of the extension portion used as a house of 3 floors without fences or boundary marks. Thus, it cannot be concluded that the extension portion is merely a corresponding part of the existing building that does not have any economic utility independent of the existing building in terms of structure, use and function, and it is merely a corresponding part of the existing building that can not be an object of ownership separate from the existing building in transactions.

Rather, as the court below decided, the extended portion is not extended using the outer wall of the existing building, but newly constructed cement bricks and reinforced concrete walls by stockpiling them, and the exclusive passage of the extended part and electric power distribution lines and water supply and drainage systems, etc. were installed separately, and the 1, 2, 3, and 3, which are used separately from the existing building, there is no room to regard the extended portion as having economic utility as independent building from the existing building.

In light of the above structure, use, and function of the court below, the court below should have deliberated and judged the conformity of the above building by conducting a more closely-finding investigation, but it did not reach the judgment, or erred by misapprehending the legal principles on the conformity, which affected the conclusion of the judgment. This constitutes a ground for reversal under Article 12(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

3. However, according to the provisions of Article 365 of the Civil Code, when the mortgagee constructed a building on the land after creating a mortgage on the land for the purpose of the land, the mortgagee is entitled to request an auction of the building together with the land.

According to the records, on June 15, 1981, the plaintiff set up a collateral on the second floor (existing buildings) of the same site as 188 square meters ( Address 1 omitted) and the second floor above the site ( Address 2 omitted), which is owned by Dong-in, the plaintiff set up a collateral on June 15, 1981, and thereafter, on December 8, 1981, the auction was conducted upon the application for auction by the above collateral holder, and the above site and existing building are assessed as the object of auction until the extension of the case, and the defendant paid the successful bid price in full. On the other hand, the part of the extension of the case was set up on the above site ( Address 1 omitted) where a significant portion of the extension of the case was set up on the site of this case, and the construction permit was constructed on May 1, 198 (refer to the evidence 10-1 of this Act), and each of the above applicants can be recognized as including the above part of the application for auction (refer to the above evidence 10-1 of this case).

If the above extension was completed after the establishment of the right to collateral security on the above ( Address 1 omitted), and a substantial portion of the above extension was constructed on the above site, and the whole extension is inseparably indivisible and constitutes an object of ownership, the mortgagee of the right to collateral security on the above site shall be deemed to be entitled to exercise the right to collateral security on the whole extension.

Even in cases where the extension portion of this case is judged to be an independent building from the existing building, whether there is room to regard the extension portion as legally attributable to the successful bidder as the object of auction by examining the time of establishment of the right to collateral security and the time of completion of construction of the extension portion, etc. of the above site.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Il-young (Presiding Justice) (Presiding Justice) No. 1, Lee Jong-young (Presiding Justice) was unable to affix his/her signature and seal on overseas business trip (Presiding Justice)