[1] The utility of the superficies and the contents of the claim for exclusion of disturbance where superficies are acquired with respect to the land

[2] The case holding that, where a landowner who is constructing a new building on the land completed the registration of collateral security and creation of superficies on the land and then changed the name of the owner of the building to a third party, the superficiary may demand that the third party suspend construction of the building on the land for the purpose, unless the third party has no right to oppose the person with superficies

[1] The purpose of the superficies is to secure the collateral value of mortgaged real estate by excluding any infringement which a third party acquires a right to use or brings down the collateral value of the land until the mortgage is executed, in cases where the superficies is acquired in order to secure the collateral value of the land as well as to obtain a mortgage, barring any special circumstances, such superficies is to secure the collateral value of mortgaged real estate by excluding an infringement which brings down the collateral value of the land. In such a case, even if the third party has obtained a change of the owner of a building on the ground under construction by the landowner, the person holding superficies may demand to suspend the construction of the building on the land for which the third party

[2] The case holding that, where a landowner who is constructing a new building on the land completed the registration of collateral security and creation of superficies on the land and then changed the name of the owner of the building to a third party, the superficiary may demand that the third party suspend the construction of the building on the land for the purpose, unless the third party has no right to oppose the person with superficies

[1] Articles 214, 290(1), and 370 of the Civil Act / [2] Articles 214, 290(1), and 370 of the Civil Act

[1] Supreme Court Decision 95Da55184 delivered on March 22, 1996 (Gong1996Sang, 1353)

Han Bank Co., Ltd. (Law Firm Pok, Attorneys Doh-ho et al., Counsel for the defendant-appellant)

Other Party

Seoul High Court Order 2003Ra530 dated October 31, 2003

The order of the court below is reversed, and the case is remanded to Seoul High Court.

1. According to the reasoning of the order of the court below, the court below accepted the decision of the court of first instance and acknowledged the fact that the re-appellant extended a loan to the non-party who is the owner of the non-party of 826m2 in Nam-gu, Incheon ( Address omitted) (hereinafter "the land of this case") on June 17, 2002, and entered into a mortgage contract and a superficies contract with a maximum debt amount of 2.6 billion won for a period of 30 billion won, and completed a registration of establishment of a neighboring residential facilities and business facilities on the land of this case on the same day. The re-appellant was under construction of a neighboring residential facilities and business facilities building of this case on the land of this case at the time when the registration of establishment of a neighboring mortgage and superficies was made and had already been made up for a second floor of 2nd floor, and rejected the re-appellant's application for provisional disposition on the ground that the non-party's right to collateral security and superficies was established on the land of this case.

2. However, we cannot accept the judgment of the court below for the following reasons.

According to the records, the re-appellant, upon completing the registration of establishment of a neighboring building and the establishment of superficies on the land of this case on June 17, 2002, completed the registration of establishment of a new building on the land of this case by the non-party who is the owner of the land of this case, provided additional security to return immediately after the construction of the building in this case and the registration of preservation of ownership is completed. If the registration of preservation of ownership is impossible due to the delay of additional provision of the building, the registration of preservation under the name of the third party, or the transfer of the land or the ownership to a third party, etc., he will be at any disadvantage in the event he exercises the security right, and all the expenses incurred thereby will be borne by the non-party and bear civil and criminal liability. The non-party permitted the construction of the building under the name of the owner of the building of this case on August 1, 202, the non-party changed the name of the building as the other party to the construction of this case, and the non-party did not respond to the change of ownership.

In the event that superficies are acquired in order to obtain a mortgage on land as well as to secure the value of the mortgage, the purpose of the superficies is to secure the collateral value of the mortgaged real estate by excluding any infringement which a third party acquires the right to use or brings down the collateral value of the land until the mortgage is executed, barring any special circumstances. In such a case, even if the third party has been changed to the owner of the building on the ground under construction by the landowner, unless there is a title to oppose the person holding the superficies, the person holding the superficies may seek to suspend the construction of the building on the land for the third party, unless there is a title to oppose the person holding the superficies.

In light of the above legal principles, even if the non-party, a landowner of the land of this case at the time of acquiring the right to collateral security and superficies, was aware that the non-party, who was the owner of the land of this case, accepted the restriction, it cannot be deemed that the non-party, who was the third party, allowed the non-party to construct the building after changing the name of the owner from the non-party. Thus, unless the counter-party did not assert or prove that the counter-party had the right to oppose the re-appellant, the re-appellant has the right to be compensated

Nevertheless, the court below dismissed the appeal on the ground that the non-party, the owner of the land of this case, knew that the non-party, at the time of acquiring the right to collateral security and superficies of this case, has no preserved right to seek suspension of construction of the above building against the other party for the reason that the non-party, who is the owner of the land of this case, knew that the non-party, at the time of acquiring the right to collateral security and superficies of this case, accepted the restriction, and dismissed the appeal. In so doing,

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)