In a case where a person who created a superficies is not entitled to a claim for the extinction of a superficies, received part of the rent in arrears from the person who has superficies and received it without objection, and the rent in arrears becomes less than two years, whether the person who created the superficies may claim the extinction of the superficies on the ground that the person who did not pay rent for the previous two-year period (negative), and whether such a legal doctrine is the same as that between the landowner and the statutory superficies (affirmative)

If a superficiary fails to pay rent for not less than two years, the settlor of the superficies may claim termination of the superficies (Article 287 of the Civil Act). However, in cases where the person who has created the superficies receives part of the rent in arrears from the superficiary while he/she does not claim termination of the superficies, and the rent in arrears is less than two years after he/she received it without objection, the settlor of the superficies may not claim termination of the superficies against the superficiary on the ground that the person who has superficies did not pay rent for the previous two-year period. This legal doctrine also applies between the landowner and the person who has superficies.

Articles 287 and 366 of the Civil Act

Plaintiff (Law Firm Geumsung, Attorneys O Young-moo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

Suwon District Court Decision 2012Na4160 decided October 12, 2012

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

If a superficiary fails to pay rent for not less than two years, the settlor of the superficies may claim termination of the superficies (Article 287 of the Civil Act). However, in cases where the person who has created the superficies receives part of the rent in arrears from the superficiary while he/she does not claim termination of the superficies, and the rent in arrears is less than two years after he/she received it without objection, the settlor of the superficies may not claim termination of the superficies against the superficiary on the ground that the person who has superficies did not pay rent for the previous two-year period. This legal doctrine also applies between the landowner and the person who has superficies.

(7) According to the reasoning of the lower judgment and the record, Defendant 2: (a) was to construct a 2-story building (hereinafter “instant building”) on the ground that it was owned by it; (b) purchased the instant land on February 1, 208; and (c) filed a lawsuit demanding the Defendants to remove the instant building and deliver its site; and (d) the Plaintiff did not pay the said 20-month rent to Defendant 2 for 10-month period from 200 to 128-month period from 200 to 20-month period from 10-month period from 200 to 20-month period from 200 to 19-month period from 20-month period from 200 to 20-month period from 10-month period from 200 to 30-month period from 20-month period from 1208 to 20-month period from 20-month period.

Examining such factual relations in light of the legal principles as seen earlier, Defendant 2 did not pay the Plaintiff two-year rent from October 2, 2009 to September 2, 201. However, on October 2, 2011, Defendant 2 remitted KRW 300,000 to the Plaintiff, without raising any particular objection, and Defendant 2’s overdue interest rate was less than two years. Thus, the Plaintiff cannot claim for the extinction of statutory superficies on the ground that Defendant 2 did not pay 2-year rent.

The court below's rejection of the claim of this case, although there are some inappropriate parts in its reasoning, is eventually justified and there is no violation of law as otherwise alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

The Plaintiff appears to have taken the attitude of the Plaintiff to exercise the Plaintiff’s right to claim the extinguishment of superficies, and paid only one-year period thereafter. The Defendants acquired superficies by arbitrarily constructing the instant building that will commence the auction of the instant land. Since the instant building was an unauthorized building, the Plaintiff’s behavior is likely to be an abuse of rights or a violation of the good faith principle, and thus, it is difficult to deem that the aforementioned argument alone violates the prohibition of abuse of rights or the good faith principle. The allegation in the grounds of appeal on this part is unacceptable.

3. Conclusion

All appeals are dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)