[1] Whether statutory superficies under customary law is recognized even in cases where only the building was sold according to the purchaser’s intent (affirmative)

[2] Criteria for determining whether a building is a solid building under Article 280 (1) 1 of the Civil Code

[3] Where a building is extended, reconstructed, or newly constructed after the establishment of a legal superficies, whether the legal superficies has the effect (affirmative) and the scope of its recognition

[4] Whether a person who acquired or occupied only a building among land and a building on the ground owned by the same person or his/her successor may also claim the possession of the former owner who owned the land and a building together with the former owner, as the basis for prescriptive acquisition (negative)

[1] In the event that land or a building belongs to the same owner but the owner of the building becomes different due to sale and purchase of the building or for any other reason, the owner of the building is not entitled to obtain legal superficies under customary law for the building from the owner of the building unless there is a condition to remove the building. The owner of the building cannot acquire legal superficies under customary law on the ground that he acquired ownership only for the building at his own will.

[2] Whether it is a solid building under Article 280 (1) 1 of the Civil Code shall be determined by considering physical and chemical external strength, resistance to fire, difficulty of dismantling a building, etc.

[3] The statutory superficies is established in cases where a building is reconstructed or extended after the statutory superficies or statutory superficies under Article 366 of the Civil Code is established, as well as where a building is newly constructed after the destruction or removal of the building. However, the scope of the statutory superficies is limited to the part within the scope generally necessary for its maintenance or use based on the previous building.

[4] In case where possession is succeeded in succession, the person who asserts the completion of the prescriptive acquisition may arbitrarily choose whether to assert only his own possession, or not to assert both his own possession and that of the relocating possessor. However, in a case where the owner becomes different by transfer of any one of the land and the building on the ground, which belongs to the same person, the possession of the land and the building on the ground of the landowner’s own land during the period in which the land and the building were owned by the same person cannot be the basis for the prescriptive acquisition. The possession of the land and the building on the ground of the prescriptive acquisition begins only from the time when the owner of the land and the building are different. As such, in acquiring the land by prescription, the person who takes over only the land and the building on the ground in the same person owned by the same person, or who occupies them by acquiring them in succession from them, can assert only the possession of the building owner’s land after the owner of the land and the building became different, and it cannot be asserted together with the possession of the former owner who owned the land

[1] Articles 279 and 366 of the Civil Act / [2] Article 280 (1) 1 of the Civil Act / [3] Articles 279 and 366 of the Civil Act / [4] Article 245 (1) of the Civil Act

[2] [3] Supreme Court Decision 95Da9075, 9082 decided July 28, 1995 (Gong1995Ha, 2975) / [2] Supreme Court Decision 87Meu2404 decided April 12, 198 (Gong198, 839) / [3] Supreme Court Decision 90Da19985 decided April 26, 1991 (Gong191, 1495), Supreme Court Decision 92Da2030 decided June 25, 1993 (Gong193, 2098)

For gambry

[Defendant-Appellee] The Head of Si/Gun/Gu

Ethical morals

Daejeon District Court Decision 95Na4269 delivered on August 14, 1996

All appeals and supplementary appeals are dismissed. The costs of appeal are assessed against each party.

1. First, the successor’s ground of appeal is examined.

The First Ground for Appeal

Unless there is a condition that the owner of a building remove a building when the land or a building belongs to the same owner, but the owner of the building becomes different due to sale and purchase of the building or for any other reason, the owner of the building shall obtain the legal superficies under customary law for the building, and shall not be entitled to acquire the legal superficies under customary law on the ground that he acquired the ownership of the building only at his own will. The argument in the ground of appeal No. 1 premised on a different view is unacceptable.

The Second Ground of Appeal

Whether a building is solid under Article 280 (1) 1 of the Civil Act or not shall be determined by considering physical and chemical external strength, resistance to fire, difficulty in dismantling a building (see Supreme Court Decision 87Meu2404 delivered on April 12, 198, Supreme Court Decision 95Da9075, 9082 delivered on July 28, 1995), and records. In light of the records, the court below's decision that the part of a building, which is composed of a building, has a substantial force in the period of time as a building used for the purpose of use as a building such as Blue tank structure, house and warehouse, and it can not be easily dismantled, and thus, it is just and acceptable to determine that the building constitutes a solid building under Article 280 (1) 1 of the Civil Act, and there is no error in the misapprehension of legal principles as to the duration of superficies, as alleged in the ground for appeal.

As to the third ground for appeal

Inasmuch as a claim for damages and a claim for rent on the ground of an illegal possession are entirely different from the grounds for the claim, so long as the plaintiff or the successor did not prove that they were asserted in the pleading, even though the court below did not actively explain whether to claim for rent when statutory superficies is acknowledged during the claim for damages equivalent to rent, it cannot be deemed that the court below committed an unlawful act of failure to exhaust all necessary deliberations or determination. This part of the claim is without merit.

2. We examine the Defendant’s grounds of incidental appeal.

The First Ground for Appeal

In light of the records, it is proper that the court below rejected the defendant's assertion that the plaintiff and the succeeding intervenor purchased the land of this case from the non-party Ansan-jin in purchasing the land of this case, which the defendant currently occupies, with the exception of the sale objects, and there is no violation of the rules of evidence as alleged in the ground of appeal.

The Second Ground of Appeal

The statutory superficies under Article 366 of the Civil Act is established in cases where a building is reconstructed or extended after the statutory superficies or customary statutory superficies is established, as well as in cases where a building is newly constructed after the destruction or removal of the existing building. However, the scope of the statutory superficies is limited to the part within the generally necessary scope for its maintenance or use based on the previous building (see, e.g., Supreme Court Decisions 90Da6399, Jul. 10, 190; 90Da19985, Apr. 26, 1991). As to the scope of recognition of the statutory superficies of this case, the lower court cannot be deemed to have extended to the existing building after the establishment of the statutory superficies in addition to the existing building and the scope necessary for the maintenance or use of the existing building can be deemed to have been limited only to the site in light of the circumstances as stated in its reasoning, and it is reasonable to have determined that it is not appropriate to apply the legal principles to this case.

As to the third ground for appeal

In the case where possession has been succeeded in succession, the person who asserts the completion of the acquisition by prescription may choose at will only his own possession, or also his own possession and the prior possessor’s possession. However, in a case where the owner becomes different by transfer of any one of the land and buildings owned by the same person to another person, the possession of one’s own land during the period in which the land and the building were owned by the same person cannot be the basis for the acquisition by prescription. The possession of the land and the building cannot be the basis for the acquisition by prescription. It should be deemed that the acquisition by prescription begins only from the time when the land and the building owned by the same person are different from the owner of the land and the building on the land and the building on the land, or the person who takes over only the land and the building on the land and the building on the land acquired them in succession from them can only claim the possession of the building owner after the ownership of the land and the building became different, and it cannot be asserted together with the possession of the former owner who owned the land and the building.

In the same purport, it is reasonable that the court below held that the possession of the land of the three parcels in its holding and the building of the rest area above its ground was commenced on the basis of the prescriptive acquisition for the part of the land in this case only after the non-party, the former owner of the land, and there is no error in the misapprehension of legal principles as argued in the Grounds for Appeal.

All of the arguments in the grounds of appeal are groundless.

3. Therefore, the successor's appeal and the defendant's incidental appeal are all dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)