In the case of reconstruction or extension of a building existing at the time of the establishment of a mortgage, reconstruction after the destruction or removal of the building, or new construction, the nature of the legal superficies under Article 366 of the Civil Act and the scope of the legal superficies therefor.

In order to establish legal superficies under Article 366 of the Civil Code, there should be a building on the land which becomes the object of a mortgage at the time of the establishment of a mortgage. Since there is a building at the time of the establishment of a mortgage, as long as there is a building thereafter, the building is reconstructed or extended, as well as reconstruction after the building is destroyed or removed, and the statutory superficies is established even if the building is newly constructed. In this case, the duration, scope, etc. of the statutory superficies shall be limited to the extent generally required

Article 366 of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant-appellant-appellee)

Jung-jin (Attorney Park Jung-jin, Counsel for the plaintiff-appellant)

Haak and six others (Attorney Kim Jong-sub, Counsel for the plaintiff-appellant)

Incheon District Court Decision 89Na1766 delivered on November 16, 1990

The part of the judgment below against the Defendants shall be reversed, and that part of the case shall be remanded to the Incheon District Court Panel Division.

We examine the grounds of appeal.

On February 2, 1983, the court below issued an order for the registration of establishment of a mortgage on the site of the non-party 852-6, Dong-dong-dong-si (if the court below stated the damages as 852-1, it shall be deemed to be a clerical error), 854-1, and 45,000 won, to the non-party 854-1, the registration of establishment of a mortgage on the site of the non-party 854-1 and the non-party 1 and the non-party 1 and the non-party 2 building on the non-party 1 and the non-party 1 and the non-party 2 building on the non-party 1 and the new building on the non-party 1 and the new building on the non-party 749-3 and the new building on the non-party 1 and the new building on the non-party 1 and the new building on the non-party 2's own land on the non-party 1 and the new building on the non-party 3.

In order to establish legal superficies under Article 366 of the Civil Act, there should be a building on the land which is the object of a mortgage at the time of the establishment of a mortgage. Since there is a building at the time of the establishment of a mortgage, it should be established not only when the building is reconstructed or reconstructed after the building was destroyed or demolished, but also when the building is reconstructed after the removal. In this case, the duration, scope, etc. of legal superficies should be limited within the scope generally necessary for its utilization based on the old building (see Supreme Court Decision 90Meu6399, Jul. 10, 1990).

In this case where it is apparent that the above old building existed on the site of this case at the time of the establishment of the right to collateral security, the defendants may assert the establishment of legal superficies for the building of this case newly constructed. However, its scope is limited to the part of the site which was necessary for the maintenance and use of the old building. Thus, the court below denied the establishment of legal superficies and ordered the removal of the building of this case after determining the scope of legal superficies established on the site of this case, and the payment of land rent and damages therefrom. However, the court below ordered the removal of the building of this case, the removal of the building of this case, the delivery of the site of this case, and the payment of damages from the rent for the lease party, even though the scope of legal superficies established on the site of this case was determined and the court below

Therefore, the part of the judgment of the court below against the defendants is reversed, and this part of the case is remanded to the Incheon District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Woo-soo (Presiding Justice)