[1] In a case where the transferee of an unregistered building along with the site becomes different from the auction of the site while the registration of ownership transfer has been completed only on the site, whether the legal superficies under the customary law is acquired (negative)

[2] In a case where a building site and a building were sold to a person on the building site but only ownership transfer registration has been made, whether legal superficies under the customary law between the parties to the sale is recognized (negative)

[1] In a case where a person who acquired unregistered buildings together with the building site acquires the registration of ownership transfer only on the building site, and the building site is auctioned and its owner becomes different under the condition that the registration is not transferred, the transferee of the unregistered building does not have the right to dispose of the unregistered building, and therefore, it cannot be seen that the building site and the building belong to the ownership of the same person, so legal superficies cannot be created.

[2] In a case where a building site and a building are sold from the original owner to a person who owns the building site and the registration of ownership transfer has been completed only on the building site, and the ownership of the building remains in the name of the seller, and the nominal owner of the building differs, the issue of possession and use of the building site can be resolved according to a contract between the parties to the sales contract, so there is no need to recognize legal superficies according to custom between the two parties.

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

[1] Supreme Court Decision 87Meu869 decided Dec. 8, 1987 (Gong1988, 168) (Gong1989, 418), Supreme Court Decision 91Da16730 decided Aug. 27, 1991 (Gong1991, 2430), Supreme Court Decision 83Da419, 420 decided Jul. 26, 1983 (Gong1983, 130), Supreme Court Decision 93Da2687 decided Dec. 28, 1993 (Gong194, 521)

Plaintiff

Defendant (Law Firm Taesung, Attorney Kim Dong-ho, Counsel for defendant-appellant)

Changwon District Court Decision 97Na4771 delivered on November 28, 1997

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

The grounds of appeal are examined.

1. On the first ground for appeal

In a case where a person who acquired unregistered buildings together with the building site acquires the registration of ownership transfer only on the building site and the owner of the building becomes different while the building site is not transferred, the transferee of the unregistered building does not have the right to dispose of the unregistered building, and thus, it cannot be deemed that the building site and the building belong to the ownership of the same person. (See, e.g., Supreme Court Decisions 87Meu869, Dec. 8, 1987; 88Meu2592, Feb. 14, 1989; 91Da16730, Aug. 27, 1991; 91Da16730, Aug. 27, 1991). In a case where the owner of the building site and the building were sold to one person, but the ownership transfer registration is completed only on the building site and the building owner remains in the name of the seller, so the issue of possession and use of the building site and the building owner is not necessary to be resolved by two parties under a contract.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the right to occupy each land of this case exists on the ground that the non-party 1 had de facto right to dispose of the existing building of this case, or that the non-party 1 had de facto right to dispose of the existing building of this case, when the non-party 1 sold the existing building to the above non-party 2, it had already established legal superficies under the customary law for the existing building of this case, and the defendant purchased the existing building of this case through the non-party 2 and completed the registration of ownership transfer only with respect to each land of this case, and used the existing building as a non-party 2 without completing the registration of ownership transfer, and the plaintiff completed the registration of ownership transfer without completing the registration. In light of the above legal principles and records, the court below did not err in the misapprehension of legal principles or the records, contrary to what is alleged in the ground of appeal.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below acknowledged that each building constructed on the ground of the annexed drawings (A), (d), (f), (g), and (j) of the land of this case was extended to the existing factory building and material storage building built by the above non-party 1, or used as a passage, alteration station, boiler room, a lodging house of the manager, etc. for convenience in the use of the existing building and structure like the previous building, the materials, storage and passage constructed on the ground of the same drawings (c), (h), (i) are attached to the outer wall of the existing building, and some barriers are attached to the outer wall of the existing building. However, the court below rejected the defendant's allegation that the building was constructed on the ground of the above part (a), (d), (f), (g), (g), and (g) and (g) were not in a position consistent with the common law of the existing building, and it is difficult to find that there were no errors in the misapprehension of legal principles as to the building's independent building and the building's independent building.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)