[1] Institutional purport of statutory superficies under Article 366 of the Civil Code

[2] The case holding that the owner of a building site and a ground building cannot acquire legal superficies in case where the owner of the building site and the ground building have completed the registration of establishment of a mortgage on the building site and the building because of the intention to provide the creditors with the building site as a security without registering the new building after the destruction of the existing building, and such facts were revealed in the auction procedure and only the building site was sold

[1] Legal superficies under Article 366 of the Civil Code provides that if land and the building on the ground belong to another owner due to an auction of mortgaged property, the owner of the land shall be deemed to have established superficies against the owner of the building. The purport of the system is to avoid any unreasonable ground where the auction price of the building is reduced and the land use risk is threatened for the ownership of the building, if one of the building sites and buildings is inserted into a mortgage in our legal system that regard the building site and the building as a separate real estate, an auction is not based on the owner's intention, and if an agreement on land use is not smooth between the owner of the new building and the new owner of the building, the building owner shall remove the building.

[2] The case holding that the owner of a building site and a building on the ground completed the registration of creation of a mortgage on the building site and a building on the ground that the owner of the building site and a building on the ground completed the registration of establishment of a mortgage on the building site and the building to provide the creditors as a collateral without registering the new building after the destruction of the existing building, and that the owner of the new building cannot acquire

[1] Article 366 of the Civil Code / [2] Article 366 of the Civil Code

Plaintiff 1 and one other (Attorney Kim-sub, Counsel for the plaintiff-appellant)

Defendant (Law Firm citizen, Attorneys Seo-young et al., Counsel for the defendant-appellant)

December 12, 2006

1. The defendant removes the buildings listed in paragraph (2) of the attached list to the plaintiffs, delivers the land listed in Paragraph (1) of the attached list to the plaintiffs, and pays the money calculated by the ratio of KRW 99,000 per month from April 10, 206 to the delivery of the above land.

2. The plaintiffs' remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant removes the buildings listed in attached Table 2 to the plaintiffs, delivers the sites listed in Paragraph 1 of the same Table to the plaintiffs, and pays the money calculated by the ratio of KRW 99,000 per month from April 7, 2006 to the delivery of the above site.

1. Basic facts

The following facts are either not disputed between the parties, or acknowledged in full view of Gap evidence 1-1-2, 2-2, 3-1-5, Eul evidence 1-2, and Eul evidence 1-2, the result of the appraisal commission to the corporation of this court and the whole purport of the arguments.

A. On April 11, 2005, Daegu District Court No. 2005Mota20187 decided Apr. 11, 2005, the instant site was owned by the Nonparty. The Plaintiffs purchased the instant site at the auction procedure on February 14, 2006.

B. On December 2, 1983, the Nonparty: (a) purchased the instant building site and a wooden sap 76.83m2 (hereinafter “the instant building”); and (b) subsequently, the Nonparty newly constructed a building listed in [Attachment List 2] around July 1987, after destroying the instant building.

C. However, even at the time of the above auction procedure, the registry of the building of this case was not closed, and the new building of this case continued to be unregistered, and the Nonparty provided four creditors, including the Korea BluTol, Inc., from May 26, 1993 to January 14, 2005, the sum of the maximum debt amount of the instant site and the instant new building, as security, to four creditors, including Korea Bluth, Inc., and the Nonparty completed the registration of establishment of a new building on the instant site and the instant new building, on account of the relationship in which the registration of ownership preservation was not completed for the new building of this case, the registration of establishment was completed for the building near the instant building site and the instant old building.

라. 그 후 2순위 근저당권자인 한국존슨앤드존슨메디칼 주식회사의 신청에 의하여 2005. 4. 11.경 위 가.항에서와 같이 이 사건 대지와 이 사건 구 건물에 대한 부동산임의경매절차가 개시되었으나, 위 신청 당시까지도 근저당권자들은 이 사건 구 건물과 이 사건 신 건물의 차이 등을 인식하지 못하고 있었으며, 위 경매절차에서 위와 같은 사실 및 이 사건 구 건물은 이미 멸실된 사실 등이 밝혀지자 신청채권자인 위 주식회사는 2005. 10. 27. 이 사건 구 건물에 대한 경매신청을 일부취하하였다.

E. The new building of this case remains in unregistered state even before the completion of the auction procedure. However, on April 10, 2005 immediately after the Plaintiff purchased the instant land, the registration of ownership preservation was completed on April 10, 2005, and the registration of ownership transfer was completed on the ground of sale on the seventh day of the same month to the Defendant.

F. As of the date of closing argument, the rent in the absence of a security deposit for the instant site is KRW 99,00 per month.

2. The parties' assertion

The plaintiffs asserted that since the defendant without any title possessed the new building of this case on the site of this case, the defendant has a duty to remove the new building of this case, deliver the site of this case, and return unjust enrichment acquired by occupying and using the site of this case.

The Defendant: (a) the Nonparty owned the instant building and the instant new building; (b) due to auction, the ownership of the instant building and the instant new building changed; (c) pursuant to Article 366 of the Civil Act, the Nonparty acquired statutory superficies for the instant new building; and (d) the Defendant purchased the instant new building from the Nonparty; (c) ultimately, the Defendant is a person at a location to seek the implementation of statutory superficies registration procedure on behalf of the Nonparty, who is the transferor of the instant new building, in subrogation of the Nonparty, who is the owner of the instant building; and therefore, (d) the Plaintiffs’ seek removal of the instant new building and delivery of the instant new building cannot be permitted under the principle

3. Determination

A. As to the removal of the building and the claim for delivery of the site

If the owner of a building with statutory superficies disposes of the building to a third party, the owner of the building without completing the registration of statutory superficies cannot be deemed to have acquired the ownership of the building, and thus the owner of the building cannot claim the superficies. The legal superficies is still reserved against the original legal superficies (Supreme Court Decision 94Da39925 delivered on April 11, 1995).

Therefore, I first examine whether the Nonparty acquired legal superficies for the new building of this case.

The statutory superficies under Article 366 of the Civil Code is a system that considers the owner of the building as superficies if the land and the building on the ground belong to another owner due to the auction of the mortgaged property. The purport of the system is to avoid any unreasonable reason that the auction price of the building is reduced and that the land and the building on the ground are threatened with the land use for the purpose of owning the building, if one of the site and the building are put into a mortgage, an auction is not based on the owner's will, and if an agreement on land use is not reached between the new site owner and the new site owner, the building owner should remove the building.

① According to the evidence evidence Nos. 2 and 5, and No. 3, the appraisal value of the instant building is KRW 237,150,00, and the appraisal value of the instant new building is 43,792,640, and the purchase price of the instant new building from the Nonparty is 18,000,000, even if the instant new building was purchased by the Nonparty, it would be reasonable to view that the instant new building would have been owned by the Nonparty as a collateral, and it would have been difficult for the Nonparty to acquire the instant new building as collateral, with the intention of offering the instant new building as collateral, to acquire the ownership of the instant building from May 2, 1993 to January 14, 205, it would have been unreasonable to view that the instant new building would have been purchased by the Nonparty as well as the new building that would have been owned by the Nonparty, and it would have been difficult for the Nonparty to acquire the new building as collateral.

Therefore, since the defendant purchased the new building of this case from the non-party who is unable to exercise legal superficies, it cannot be viewed as a person who can exercise the legal superficies in subrogation for the new building of this case, and therefore, the defendant's defense to acquire the legal superficies of this case is without merit.

Ultimately, the defendant is obligated to remove the building of this case owned by the plaintiff and deliver the site of this case to the plaintiff.

B. As to the claim for rent

As long as statutory superficies for the new building of this case is not established, the defendant without any title owns and uses the building of this case on the site of this case, and the profits accrued therefrom shall be KRW 90,000 per month, which is equivalent to the rent of 90,000 in the absence of security deposit as of the date of closing argument as of the date of closing argument. Thus, the defendant is obligated to return to the plaintiffs the amount calculated by the ratio of KRW 99,00 per month from April 10, 2006 to the date of delivery of the land of this case from April 10, 206 to delivery of the land of this case.

4. Conclusion

Therefore, the plaintiffs' claims are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Judges Shin Jiny