(a) If a building on the ground was under construction by a landowner at the time of the establishment of a mortgage on the land, and the size and type of the building is expected to be external form, the nature of the statutory superficies (affirmative)

(b) Claim for removal of a building based on the ownership of the landowner against a person in the position to acquire legal superficies, and the principle of good faith;

A. Legal superficies under Article 366 of the Civil Act is generated for the owner of a building when land and a building belonging to the same person come to the different owner due to an auction at the time of the establishment of a mortgage. As to the land, at the time of the establishment of a mortgage on the land, the building was under construction by the owner of the above land, and even if it did not reach the degree that it can be seen as an independent building in light of social norms, if the building is being constructed to the extent that the size and type of the building can be anticipated to be external form, the mortgagee can expect the building to be completed, so it does not cause any unexpected damage even if the legal superficies is recognized, and it is recognized that the need to maintain the building needs to be maintained socially and economically, the establishment of the legal superficies

B. For a person who is in the position to acquire legal superficies, seeking the removal of a building based on ownership cannot be permitted under the principle of good faith.

A.B. Article 366 of the Civil Code

B. Supreme Court en banc Decision 88Meu1131,132 Decided April 9, 1985 (Gong1985,721) (Gong1985,721) decided May 9, 1989 (Gong1989,902) 91Da21701 Decided September 24, 1991 (Gong191,2612)

Plaintiff

[Defendant-Appellant] Defendant 1

Busan District Court Decision 91Na4468 delivered on January 24, 1992

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment below, on February 1, 1988, the non-party 1, who was the owner of the site of this case, sold the land of this case and its ground structure (the status of the basic construction and retaining wall construction) under construction on the land of this case to the non-party 1, who was the representative director, and the non-party 1, who was the owner of the site of this case, sold the land of this case to the non-party 1, who is the defendant and the defendant's co-defendant 1, who was the defendant, and the above co-defendant 1, who was the defendant and the above co-defendant 1, who possessed the land of this case, and completed the registration of ownership transfer as to the land of this case on February 29 of the same year. The non-party 1, May 12 of the same year, also set up a collateral security right to the non-party 2, 1988 building of this case and its above building on the site of this case, and did not have completed the registration of ownership transfer.

In light of the records, the court below's finding of evidence and fact-finding is just and there is no error of law of misunderstanding of facts due to violation of the rules of evidence as pointed out. There is no ground for appeal.

2. On the second ground for appeal

The statutory superficies prescribed in Article 366 of the Civil Act is the legal superficies created for the owner of a building when the land and the building owned by the same person come to be different from the owner of the building due to auction at the time of the establishment of a mortgage as to the land, and at the time of the establishment of a mortgage as to the land, the building was under construction by the said owner, and even if it did not reach the degree that it can be seen as an independent building in light of social norms, if the building has been developed to the extent that the size and type of the building can be anticipated to be external form, the establishment of the statutory superficies is reasonable. This is because, in the case where the above construction has been developed, the mortgagee could expect the building to be completed, so it does not incur any loss due to the recognition of legal superficies, and it is recognized

According to the facts established by the court below, since the above non-party company was constructing a building on the ground at the time when the building site of this case was established, and the housing and the second-story building building in the decision was completed only for a period of four months from that time, it is difficult for the court below to find that the construction of the above building was developing considerably to the outside form at the time of the establishment of the right to collateral security, and therefore, the court below decided whether the above construction was established or not, and further, even if the plaintiff and the above co-defendant 1 of the court below did not receive the registration of transfer of ownership before the successful bid, their ownership still remains a seller and the legal superficies for the above building remains in the non-party company, which is the original purchaser, the above co-defendant 1 of the court below's judgment and the co-defendant 1 of the court below can seek implementation of the procedure for the establishment of legal superficies in order to the plaintiff who is the former owner of the building and the land of this case without the legal principles of the obligee's subrogation, and it cannot be accepted the above legal principles as to the plaintiff 1981.

Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)