[1] Where one co-owner of land constructs a building with the consent of a majority of the shares of other co-owners and the owner of the land and the building vary, whether statutory superficies under customary law is established (negative)

[2] In a case where a building is demolished and a new building is newly constructed after a joint mortgage was created on a land owned by the same person and a building thereon, whether statutory superficies is established for a new building if the land and a new building belong to another owner through an auction of mortgaged property (negative in principle)

[1] If one co-owner of land constructs a building with the consent of a majority of the shares of the other co-owners and the owner of the land and the building are different, the legal superficies under the customary law is considered to be established on the land, which would result in allowing one co-owner of the land to dispose of the creation of superficies until the other co-owner's share, excluding his/her own share, is unreasonable. This legal doctrine also applies to the legal superficies under Article 366 of the Civil Act, and furthermore, in cases where both the land and the building belong to co-ownership, the right to collateral security, the object of which is only the share of the co-owner of the land, was established and a third party acquires the share

[2] In a case where a new building is removed after a joint mortgage was established on the land and a building owned by the same person, and a new building is newly constructed, barring special circumstances, such as where the owner of the new building is identical to the owner of the land, and the mortgagee of the land establishes a joint mortgage on the same order of priority as the mortgage on the land for the new building, the statutory superficies for the new building is not established even if the land and the new building belong to another owner due to the auction of the mortgaged property. This is to be interpreted that the statutory superficies for the new building is established even if the joint mortgage on the land and the new building were not established after the removal of the building, even if the joint mortgage on the same order of priority is not established on the land and the new building after the removal of the building, as a result, the joint mortgagee could not acquire the value equivalent to the value of the new building established. This legal doctrine is because, as a result, the joint mortgagee expects to realize the exchange value of the new building as a building without any restriction on the initial value of the new building.

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

[1] Supreme Court Decision 92Da5756 delivered on April 13, 1993 (Gong1993Sang, 1393) / [2] Supreme Court en banc Decision 98Da43601 delivered on December 18, 2003 (Gong2004Sang, 134)

Lee & Lee (Law Firm LLC et al., Counsel for the defendant-appellant)

See attached list of the defendants (Law Firm KEL, Attorneys Lee Jae-hwan et al., Counsel for the defendant-appellant)

Intervenor (Law Firm LLC, Attorneys Jeong Jin-soo et al., Counsel for the intervenor-appellant)

Seoul High Court Decision 2010Na8466, 8473 decided June 30, 201

Of the judgment of the court below, “owner” in the list related to the removal of the attached Table 1 “the part of the statutory superficies” against the Defendants is reversed, and this part of the case is remanded to the Seoul High Court. The part of the judgment of the court below as to the removal of the parts as to the stated “the part of the statutory superficies” and the part concerning the claim for delivery of the said part of the land, “the aforementioned part of the claim for return of unjust enrichment against the Defendants,” and “Lessee” in the list related to the attached Form 2 “Lease” against the Defendants, and the part concerning the claim for withdrawal against the Defendants as to “the part concerning the establishment of the statutory superficies” in the attached Table 2. The remaining part of the costs of appeal by the Defendants are all dismissed. The remaining part of the costs of appeal by the Defendants are assessed against the Defendants.

1. Determination on the appeal by Defendant 31, 33, 42, 46, 58, and 68

The appeal filed by the above Defendants did not state the grounds of appeal, and the above Defendants did not submit the appellate brief within the statutory period.

2. Determination on the grounds of appeal by the remaining Defendants, excluding Defendant 31, 33, 42, 46, 58, and 68

A. Regarding ground of appeal No. 1

1) Whether statutory superficies is established as to the land listed in paragraph (3) of the same list as the land listed in paragraph (2) of the attached Table 2 of the lower judgment (hereinafter “instant land”) and the land listed in paragraph (2) of the attached Table 2 of the lower judgment (hereinafter “instant land”).

A) Legal superficies under Article 366 of the Civil Act is created for the owner of a building when land and a building owned by the same person come to the different owner due to an auction at the time of the establishment of a mortgage. In the event that a building was constructed on the ground by the landowner at the time of the establishment of a mortgage on the land, even if it did not reach the degree that the size and type of the building can be seen as an independent building in light of social norms, construction has been developed to the extent that the size and type of the building could be anticipated to be externally. In the latter case, if it satisfies the requirements of the building as an independent real estate, such as a minimum columns, roof, and main wall, from the auction procedure to the time the buyer paid the sale price, then statutory superficies is established (see Supreme Court Decision 2004Da13533, Jun. 11, 20

Meanwhile, even in cases where one co-owner of a building independently owns the land which is the site of the building and only a mortgage was created on the land, but the land owner was changed due to auction by the above mortgage, the above co-owner recognized the use of the land on behalf of the other co-owners of the building as well as himself/herself. Since the mortgagee could have anticipated the burden of statutory superficies at the time of establishing the mortgage, it is not causing losses to the opposite party, and there is a need for public interest to prevent socioeconomic loss due to the removal of the building, it is reasonable to view that the above co-owner of the building acquired statutory superficies for the continuation of the building as prescribed in Article 366 of the Civil Act (see, e.g., Supreme Court Decisions 76Da388, Jul. 26, 197; 2010Da67159, Jan. 13, 2011).

B) Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

(1) Defendant 35, 36, 41, 43, 45, and Scenic Construction Co., Ltd. (hereinafter “○○ Construction”), Co-Defendant 36, 37, 40, 42, 44, 48, 49, 52, 54, 57, 59, 59, 67 (hereinafter “original co-defendant”) and Nonparty 1, and 2 (hereinafter the above 20 co-defendants collectively referred to as “○○○ building owners”) owned 00,000,000,000,0000,0000,000,000,000,000,000,000,000,000,000,00,000,00,00,000,00,000,00,000,00,000.

(2) On January 28, 2003, the owner of ○○ Construction Co., Ltd. and 24 co-Defendant 51, 46, 75, and 46 of the lower judgment decided to reconstruct an aggregate building in the form of a main complex on the ground of the above five parcels. In order to raise the expenses required for the reconstruction process, the owner of ○○ Construction Co., Ltd., on January 28, 2003, extended loans from our bank (hereinafter “Korea bank”) by establishing a joint collateral security of each maximum debt amount of KRW 72 million with respect to the pertinent land and the building on the ground.

(3) On July 31, 2003, as the above ground buildings were removed, including ○○ Construction, each of the above ground buildings was cancelled on July 31, 2003.

(4) On August 2003, the said 24 persons established ○○ Urban Reconstruction Association and entrusted the ownership of the said five parcels of land to the said Association.

(5) On July 29, 2004, the registration of the establishment of a mortgage was completed on July 29, 2004 with respect to the share of land (this share is the share of 17 co-owners except for 36 co-owners, 35, 45, etc. among the share of 20 co-owners of the building site for ○○○○ Construction) listed in paragraph (1) of the attached Table 2 Real Estate (Land) and the land Nos. 2 and 3 (hereinafter collectively referred to as "each land of this case") listed in the judgment of the court below as to the share of land listed in paragraph (1) of the attached Table 1 of the judgment of the court below. The registration of the establishment of a mortgage was completed again on the ground that the owner of the building of this case belonged to the trust property of this case after the establishment of a mortgage.

On the other hand, the Yeongdeungpo Mutual Savings Bank completed the registration of the establishment of the above neighboring mortgage and conducted an appraisal prior to the execution of the loan to the Defendant Scenic Comprehensive Construction, and the appraisal report is written on the 4th underground floor and the building on the 11st floor above ground at the time of appraisal on July 7, 2004 at the fair rate of 45%.

(6) Since then, in addition to the above five parcels, 104.1 square meter and 9.5 square meter and 104.1 square meter and 9.5 square meter and 5 square meter were added to a site for reconstruction. Ultimately, on the seven parcels, the buildings listed in the attached Table 3 (Building) of the lower judgment, which are the aggregate building, (hereinafter “instant building”) were newly constructed, and on July 31, 2006, each section of exclusive ownership (as to the apartment and commercial building) within the instant building (However, the shares of Nonparty 1 were transferred to the co-defendant 64 of the lower court) and the co-defendant 51, 46, Defendant 75, and 46 (hereinafter collectively, referred to as “the owner of the instant building”). In addition, the registration of preservation of ownership was completed by 1/24 shares in each of the following areas.

(7) However, since Defendant Spoi General Construction failed to repay the principal and interest of the debt owed by the collateral security loan against Young Mutual Savings Bank in time, the voluntary auction procedure for each of the instant land was commenced upon the application of Yeongdeungpo Mutual Savings Bank. The Plaintiff acquired each of the instant land by completely paying the sales price on July 17, 2008 at the auction procedure.

(8) Since the ownership of the section for exclusive use in the instant building has been partially altered, the Defendants indicated in the column for “the indication of the Defendant’s shares” in the list of [Attachment 3] real estate (building] in the judgment of the court below owns the section for exclusive use indicated in “the indication of the building.” The list of “the Defendant (in direct possessor as the non-owner)” in the list of the occupancy status by the Defendant in attached Form 4 of the judgment of the court below, the Defendants occupy each section for exclusive use indicated in “the indication of the building in the section for exclusive use.” Of them, the parts on the land Nos. 2 and 3 of this case are as indicated in the attached Table 25, 26, 35, 36, 41, 43, 45, and glar integrated construction” in the list of “owners” related to the removal of the instant building (Defendant 25, 26, 36, 41, 45, and glar integrated construction). The Defendants indicated in the separate column 2 “Defendants”

(9) Meanwhile, among the registration of creation of a neighboring bank's establishment, the loan balance was cancelled on April 7, 2007 for Defendant 36, 43 and Defendant 37, 44, 46, 48, 51, 52, 57, 59, 67, and Nonparty 2 (hereinafter referred to as "three co-defendant 51, 46, etc.") in the case of Defendant 36, 43, and Defendant 46, 46, 46, 48, 51, 52, 57, 59, 67, and Nonparty 2 (hereinafter referred to as "original co-defendant 51, 46, etc.") on the ground of each principal repayment from 2006 to January 208.

C) We examine these facts in light of the legal principles as seen earlier.

First, the right to collateral security of our bank, including 51,46, with 13 co-defendants of the court below, was extinguished by cancellation of the registration, repayment of the secured obligation, and termination of the contract to collateral security before the plaintiff fully pays the sale price in the auction procedure, or even if the secured obligation was not finalized until then, the secured obligation was naturally invalidated as it became final and conclusive at the time of full payment of the sale price as it did not exist. Therefore, as to the land 2 and 3 of this case where co-defendant 51 and 46 owned individually by the court below, the establishment of legal superficies under Article 366 of the Civil Act shall be determined as of the time of establishment of the right to collateral security of the Yongung mutual

However, at the time of the establishment of the right to collateral security of Yeongdeungpo Mutual Savings Bank, the construction was considerably significant at the time of the establishment of the right to collateral security. Furthermore, at the time of full payment of the purchase price of the Plaintiff, the building seems to have satisfied the requirements of the building as independent real estate.

Therefore, it is reasonable to view that the owner of the instant building, including the co-defendant 51 and 46, who is the co-owner of the instant building, acquired legal superficies under Article 366 of the Civil Act for the continuance of the instant building with respect to the land Nos. 2 and 3. The owner of the instant building, including the co-defendant 51 and 46, also acquired legal superficies regarding the instant land Nos. 2 and 3 pursuant to Article 20(1) of the Act on the Ownership and Management of Aggregate Buildings. Thus, the owner of the instant building, who acquired the ownership of the exclusive ownership from the instant building owner, shall be deemed to have also acquired legal superficies regarding the instant land Nos. 25, 26, 35, 36, 41, 45, 50, 55, 61, and 71, which owns or occupies the exclusive ownership on the instant land No. 2 and 3.

Nevertheless, the lower court determined otherwise that statutory superficies cannot be established as to the land Nos. 2 and 3 of this case, and accepted each claim relating to the section for exclusive use on the land Nos. 2 and 3 of this case by the Plaintiff. In so doing, the lower court erred by violating logical and empirical rules, exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on statutory superficies, thereby adversely affecting the conclusion of the judgment. The allegation contained in

2) Whether legal superficies on the ○○ Construction Site is established

A) If one co-owner of land constructs a building with the consent of a majority of the shares of the other co-owners and the owner of the land and the building are different, the legal superficies under the customary law is considered to be established in regard to the land, which would result in allowing one co-owner of the land to dispose of the creation of superficies to the share of other co-owners except his/her own share (see, e.g., Supreme Court Decision 92Da55756, Apr. 13, 1993). This legal doctrine is equally applicable to the legal superficies under Article 366 of the Civil Act, and furthermore, it is likewise applicable to the case where a mortgage for the sole purpose of share of a co-owner was established in the case where both the land and the building belong to co-ownership, and a third party acquires the share due to auction.

Meanwhile, in a case where a joint mortgage was created on the land and a building owned by the same person, and a new building was removed after the establishment of a new mortgage on the said land and a building was newly constructed, barring special circumstances, such as where the owner of the new building is identical to the owner of the land, and the mortgagee of the land establishes a joint mortgage on the same order of priority as the mortgage on the land, the statutory superficies for the new building is not established even if the land and the new building belong to another owner due to the auction of the mortgaged property (see Supreme Court en banc Decision 98Da43601 delivered on December 18, 2003). If it is interpreted that the legal superficies for the new building is established even if the joint mortgage was not established on the land and the building newly constructed after the removal of the new building, the mortgagee cannot obtain the exchange value of the newly constructed building, thereby preventing the exchange value of the land equivalent to the value of the legal superficies, and then the mortgagee is expected to be able to realize the whole value of the newly constructed aggregate building as a part of the newly constructed aggregate building or the new building.

B) The ○○○ Construction Site was co-owned by 20 persons, among which 17 co-ownership shares except Defendant 35, 45 and 36 of the judgment below were set up, and the Plaintiff acquired only 17 co-ownership shares out of the above 17 co-ownership shares in the auction procedure. Meanwhile, ○○ Construction Co-Defendant 40, 42, 54 and 17 of the judgment below's co-defendant 17 of the judgment below, including the above 17 co-Defendant 51 and 46 of the judgment below. The owners of ○○ Construction Co-Defendant 17 of the above ○ Construction Co-Defendant 41 of the judgment below, and the above ○ Construction Co-Defendant 40, 454, and 17 of the above 17 of the 17 of the 17 of the 17 of the 17 of the 17 of the 17 of the 17 of the 17 of the 3 of the 3 of the 00000 construction site.

Therefore, although there are some inappropriate points in the reasoning of the lower court, the lower court’s conclusion that the ○○ Construction Site did not constitute legal superficies under Article 366 of the Civil Act is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the establishment of legal superficies, thereby affecting the conclusion

B. Regarding ground of appeal No. 2

For the purpose of exercising a right to be an abuse of right, a subjective purpose of exercising the right is to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right, and objectively, the exercise of the right should be deemed to be in violation of social order. Unless it falls under such cases, even if there is a significant damage to the other party than the benefit that the person exercise the right gains by exercising the right, such circumstance alone does not constitute abuse of right (see, e.g., Supreme Court Decision 2011Da38592, 38608, Jan. 16, 2013).

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below is just in holding that the plaintiff's claim of this case cannot be readily concluded as abuse of rights or violation of the good faith principle, and contrary to what is alleged in the grounds of appeal, there were no errors

3. Conclusion

Therefore, among the judgment below, the above part of the judgment of the court below concerning the removal of the above part of exclusive ownership and the part concerning the claim for delivery of the site for the construction of the Agol General Construction, the part concerning the claim for return of unjust enrichment related thereto, and the part concerning the claim for eviction against Defendant 50, 55, 61, 36, and 71, which is the possessor of the above part of exclusive ownership, are reversed, and this part of the case is remanded to the court below for a new trial and determination, and all remaining 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.

[Attachment 1] List related to Removal: Omitted

[Attachment 2] List related to Withdrawal: omitted

[Attachment 3] List of Defendants: omitted

Justices Min Il-young (Presiding Justice)