[1] In a case where a joint mortgage has been created on the land and buildings owned by the same person and another building has been removed and a new building has been constructed, whether statutory superficies under Article 366 of the Civil Code is established if the land and new building belong to different owners due to the auction of mortgaged objects (negative)

[2] The relationship between ownership of a building in a building construction contract and ownership

[1] [Majority Opinion] In a case where a joint mortgage was created on the land and buildings owned by a same person and a new building is removed after the said mortgage was created, and a new building is newly constructed, it shall be interpreted that even if the land and the new building belong to another owner due to an auction of mortgaged at the same order of priority as the mortgage on the land is identical to the owner of the land, and even if the land and the new building belong to another owner, the statutory superficies for the new building shall not be established. Unlike the cases where a joint mortgage was established on the land and the buildings owned by the same person, the joint mortgagee would allow the restriction on the use of the land from the beginning and acquire the value of the land reduced to the value of the statutory superficies by establishing a mortgage only on the land as collateral, so long as the building exists, the statutory superficies for the new building is established, and the value of the new building excluded from the exchange value of the land can be found as a result of the exchange value of the new building, which would not be equivalent to the value of the new building, but would not be equivalent to the value of the new building.

[Dissenting Opinion] The fundamental purpose of Article 366(a) of the Civil Act, which provides for the statutory superficies system, is to protect the interests of the parties on the other hand, if the land and the building on the land belong to the ownership of another person due to auction of mortgaged objects, and if the land and the building on the land belong to the ownership of another person, it is not to protect the interests of the other parties on the other hand. Legal superficies is a statutory real right which is established only regardless of the intent of the parties to the mortgage, and if the mortgagee established the legal superficies, it is difficult to harmonize the objectivity and enforcement of the requirements for the establishment of legal superficies, and if a mortgage is jointly established on the land and two buildings, the value of the collateral to be grasped by the joint mortgagee is merely the value of the land excluded from the value of the statutory superficies, and the value of the legal superficies is to be included in the value of the building necessary for the existence of the building in addition to the value of the building itself, because the legal superficies is merely a right attached to the building and thus, the owner of the new building is not only the value of the mortgaged, but also the land.

[Supplementary Opinion] Article 366(a) of the Civil Act provides that "where there is a building at the time of auction, the land and the building on the ground belongs to another owner due to the auction of mortgaged objects," the statutory superficies can be established only if there is a building at the time of auction. However, as a matter of the interpretation of the above provision, the construction of a building on the land at the time of the establishment of the statutory superficies should be established. Therefore, if the owner of the land and the building at the time of auction after construction of a new building on the land at the time of the construction of a new building on the land at the time of auction, it is a precedent or common opinion to deny the establishment of the statutory superficies for the newly constructed building if the owner of the land and the building vary from the auction after construction of a new building on the land. In such a case, the permission of the establishment of the statutory superficies would be against the expectation or will of the mortgagee who anticipated exchange value of the land without the original building, and thus, the establishment of the statutory superficies system cannot be viewed as taking account of the intention of the parties.

[2] Generally, a person who constructed a building in his/her own effort and material acquires the ownership of the building at the original time. However, even if the contractor completes the building in his/her own effort and material, if it appears that the contractor agreed to vest the ownership of the completed building, such as obtaining a construction permit under the name of the contractor and the contractor, and obtaining a registration of preservation of ownership, the ownership of the building shall be vested in the contractor.

[1] Article 366 of the Civil Code / [2] Article 664 of the Civil Code

[1] Supreme Court Decision 92Da9388 delivered on June 26, 1992 (Gong1992, 2271) (amended by Supreme Court Decision 92Da2030 delivered on June 25, 1993 (Gong1993Ha, 2098), Supreme Court Decision 200Da1907 delivered on December 12, 200 (amended by Supreme Court Decision 200Da48517, 48524, 48531 delivered on March 13, 201) (amended by Supreme Court Decision 92Da2030 delivered on June 25, 1993 (Gong1993Ha, 2098), Supreme Court Decision 200Da1907 delivered on December 12, 200 (amended by Supreme Court Decision 200Da48398, Apr. 19, 209)

tin-dong Reconstruction Association (Attorney Noh Jeong-hee, Counsel for the plaintiff-appellant)

Defendant 1

Defendant 2

Seoul High Court Decision 97Na1176 delivered on July 14, 1998

The judgment below is reversed in its entirety and the case is remanded to Seoul High Court.

1. The judgment of the court below

A. Comprehensively considering the evidence as stated in its holding, the court below decided that the above site was a single-story house, but Defendant 1 purchased the above site and a single-story house, which acquired ownership, provided the above site and a single-story house as joint collateral on February 11, 1989, and completed the registration of creation of mortgage in the future for agricultural cooperatives. On December 5, 191, the above site and a single-story house were commenced by the enforcement of the right to collateral security, but Defendant 1 agreed to purchase the above multi-story house and the new-story house of this case to Defendant 2 around September 30, 191, and it was ordered to remove the above third-story house and new-story house of this case to Defendant 100,000,000 won to the above third-story 10,000 won to the above 19,000 won to the above 19,000 won to the above 19,000 won to the above new building.

B. The court below reasoned that the plaintiff's claim against the defendant 1 was not in dispute between the parties that the owner of the new building of this case was the defendant 1, and determined that the new building of this case was acquired at the time of the auction of mortgaged property, and that the land and the building on this ground belong to the ownership of the same person respectively at the time of the establishment of mortgage, the owner of the ground building acquired legal superficies pursuant to Article 366 of the Civil Act, and rejected the plaintiff's defense based on the legal superficies of this case, and rejected the plaintiff's claim for removal of the main claimant and delivery of the site, on the ground that the same applies to the case where the building existing at the time of the establishment of mortgage was removed and the new building was newly constructed. The court below rejected the plaintiff's claim for removal of the new building of this case and the plaintiff's conjunctive claim for delivery of the new building of this case as the execution of the sale contract for the new building of this case, and rejected the plaintiff's claim for removal and delivery of the new building of this case from the plaintiff 2 and the new building of this case.

2. The judgment of this Court

A. As to the plaintiff's claim against the defendant 1

(1) In a case where a joint mortgage is created on the land belonging to the same person and buildings owned by the same person, and a new building is demolished and a new building is newly constructed, barring special circumstances, such as where the owner of the land is identical to the owner of the land, and where the mortgagee of the land wishes to establish a joint mortgage on the same order of priority as the mortgage on the land for the new building, it is reasonable to interpret that the statutory superficies for the new building is not established even if the land and the new building belong to another owner due to an auction of mortgaged property, even if the land and the new building are owned by the same person. This is because, unlike the case where a joint mortgage is created on the land and buildings owned by the same person, it is permissible to permit the restriction on the use of the land from the beginning and to acquire the exchange value of the land reduced to the value of the statutory superficies by establishing a mortgage on the new building, the joint mortgagee acquired all the value of the land and the new building at the expectation value of the new building cannot be established, but there is no limit to the exchange value of the new building as a new building.

Unlike this, Supreme Court Decisions 90Meu6399 delivered on July 10, 1990; 92Da938 delivered on June 26, 1992; 92Da2030 delivered on June 25, 1993; 200Da19007 delivered on December 12, 200; 200Da48517, 48524, 48531 delivered on March 13, 2001; 200Da1907 delivered on December 13, 200; 200Da48524, 48531 delivered on March 13, 201.

(2) In the instant case, the joint mortgage was established by the agricultural cooperative at the opening unit with regard to the instant site and the instant multi-story housing owned by Defendant 1, and the said multi-story housing was removed and the new building was newly constructed, but since the unit agricultural cooperative was not established with regard to the said new building at the same order of priority as that of the instant building, even if the instant building site and its ground were owned by others by the execution of mortgage on the instant building, the legal superficies for the instant new building cannot be established, even if the instant building and its ground were to belong to the ownership of others by the execution of mortgage on the instant building.

Nevertheless, the court below deemed that Defendant 1 acquired legal superficies for a building newly constructed on the site of this case, and rejected all the Plaintiff’s primary claimant against Defendant 1’s removal of new building of this case and the claim for delivery of this site. The court below erred by misapprehending the legal principles on the establishment of legal superficies for joint mortgages on land and its ground buildings, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

B. As to the Plaintiff’s claim against Defendant 2

(1) Generally, a person who constructed a building in his own effort and material acquires the ownership of the building in original condition. However, even if the contractor completed the building in his own effort and material, if it appears to have agreed to vest in the contractor the ownership of the completed building by obtaining a construction permit under the name of the contractor and the contractor even if the contractor completed the construction in his own effort and material, the ownership of the building shall be vested in the contractor in original condition (see, e.g., Supreme Court Decisions 89Meu1884, Apr. 24, 1990; 91Da34790, Mar. 27, 1992).

(2) According to the records, when Defendant 1 awarded a contract for the new construction of the new building of this case to Defendant 2 on September 30, 1991, it shall be deemed that it is naturally premised on the fact that the ownership of the new building of this case belongs to Defendant 1, who is the contract for the construction work of this case, and the remainder shall be appropriated to the construction cost, and the mediation cost and tax shall be borne by Defendant 1 (Records 502 pages). On July 8, 1992, immediately after the completion of the building, Defendant 1 entered into a completion inspection under Defendant 1’s name and completed the construction of this case, and Defendant 1 agreed to pay it to Defendant 2 with a loan of KRW 100 million after completing the registration of ownership preservation. Accordingly, it is sufficient to deem that the new building of this case was originally acquired by Defendant 1.

Nevertheless, the judgment of the court below which concluded that Defendant 2 acquired the ownership of the new building of this case as the original acquisition of the ownership of the new building of this case is erroneous in the misapprehension of legal principles as to the ownership of new building or failing to exhaust all necessary deliberations

(3) In addition, on the premise that the new building of this case is owned by Defendant 2, the Plaintiff sought removal of the new building of this case and delivery of the land of this case on the premise that it is owned by Defendant 2. If the Plaintiff’s claim is rejected due to the recognition of legal superficies, the Plaintiff asserts that it would purchase the order of the new building of this case and delivery of the land of this case through payment of the remaining purchase price for the new building of this case on the ground of sale and purchase contract. On the other hand, on the premise that the new building of this case is owned by Defendant 1, the Plaintiff sought restoration from the rescission of the sale and purchase contract and compensation for damages, and the above two claims are in conflict with each other. However, without properly arranging the Plaintiff’s assertion, the lower court rejected all other claims except for the Plaintiff’s conjunctive claim of this case on the premise that the new building of this case is owned by Defendant 2. The allegation in the grounds of appeal pointing this out is with merit (the entire part of the Plaintiff’s claim against Defendant 2, which should be reversed, or the Plaintiff’s conclusion should be reversed again.

(4) On the other hand, the second preliminary claim claiming the name map of the building against Defendant 2 as the performance of the sales contract is reasonable in view of the situation before and after the plaintiff's claim was made. However, if the new building of this case was owned by Defendant 2, but the claim for removal, etc. of the main claimant's building is rejected due to the same defendant's defense, etc., if the new building of this case is owned by Defendant 1 and it is not owned by Defendant 2, it is pointed out that the plaintiff's second preliminary claim against Defendant 2 should not be judged further.

3. Therefore, the judgment of the court below is entirely reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Cho Jae-do, Lee Don, Park Jae-gu, and Kim Yong-dam as to the judgment of Article 2-A. of the judgment of this case, and the majority opinion is concurring with the majority opinion by Justice Bae Ki-won as set forth in paragraph 5 below.

4. Dissenting Opinion by Justice Cho Jae-sik, Lee Do-dong, Park Jae-dam, and Kim Yong-dam as to the judgment under the above paragraph 2-A (A) is as follows.

A. The fundamental purport of Article 366(a) of the Civil Act, which provides for statutory superficies system, is to prevent social and economic losses that may arise from the removal of a building if land and a building on the ground of auction of mortgaged property belong to the ownership of another person, not to protect the interests of one of the parties (see Supreme Court Decision 65Da2587, Sept. 6, 196). In addition, as long as a building exists on the land which is the object of a mortgage at the time of the establishment of a mortgage, the establishment of statutory superficies is not hindered in cases where a building was reconstructed or expanded, as well as where a building was reconstructed or newly constructed after its removal, and in such cases, it does not require the identity between the new building and the new building, but the scope of the statutory superficies’s duration, scope, etc., which is the content of the statutory superficies, is generally limited on the basis of the previous building, which has been declared by the Supreme Court from September 6, 198 (see Supreme Court Decision 9Da19680, Apr. 16, 1990).

B. However, the majority opinion does not deny the above legal doctrine itself at a fixed level, but, unlike the case where a mortgage is established on only the land and the building belonging to the same person and only the land and the building which are owned by the same person are jointly mortgaged (in the case of a common mortgage, only if the land and the new building belong to another owner due to an auction, barring special circumstances, the legal superficies for the new building shall not be established, and the reason is that the "giant for ascertaining the value of the security of the joint mortgagee" and the "unclaimed damages suffered by the joint mortgagee" if the legal superficies is established. However, we cannot agree with the majority opinion for the following reasons.

(1) General requirements for establishing legal superficies under Article 366 of the Civil Act are ① the existence of a building at the time of establishing a mortgage, ② the identity of the owner of the land and building, ③ the creation of mortgage on one or both of the land and buildings, ④ the ownership of a building and land due to auction. Since these are composed solely of objective facts, statutory superficies is a statutory real right which is acknowledged only as an objective requirement regardless of the intention of the party to the mortgage. Even if there was an agreement between the parties to exclude legal superficies on the land which is a mortgaged object by a special agreement between the parties (see Supreme Court Decision 87Meu1564, Oct. 25, 198), the effect of such special agreement is denied (see Supreme Court Decision 87Meu1564, Oct. 25, 198). However, the majority opinion determines differently whether the statutory superficies was established depending on what is the "giant at the time of the establishment."

(2) In cases where a mortgage is established on both land and a building, the collateral value to be grasped by a joint mortgagee is merely the value of the land excluded from statutory superficies, and the collateral value to be grasped on the building is included in the value of statutory superficies necessary for the existence of the building in addition to its own value (in cases where land and a building are sold separately, such result appears, and the majority opinion expressed that the exchange value of land reduced by the value of statutory superficies can be found in the exchange value of the building where statutory superficies is established. Therefore, if a mortgage is extinguished due to the destruction or removal of an old building, the joint mortgagee would lose the value of statutory superficies as well as the collateral value of the building. Accordingly, it would be logically reasonable to view that the land owner would be out of the influence of the building mortgage. Accordingly, if the land owner acquired new building on the land and the land were to be exchanged, it would not be reasonable to view the existing value of the land as the collateral value of the new building as the collateral value of the land, which would have become a common mortgagee’s original value of the right to use of the building.

(3) Such problems can be more easily understood by applying the system of compensation for damages. In other words, the Majority Opinion is expected to create a legal superficies in the case of this case, which is, if the legal superficies is established, the mortgagee may incur unexpected damages that would be contrary to the “defluence,” but it is not because the statutory superficies is established, but because the situation in which the “defluence, removal, or reconstruction of new buildings” was unexpected. In addition, insofar as the above situation occurs in reality, the joint mortgagee would lose the value of the building itself as well as the value of the statutory superficies, which was grasped through mortgage, and thus, the Majority Opinion would be more likely to completely incur damages that are equivalent to the value of the legal superficies as seen above, because it is unreasonable for the joint mortgagee to take account of the fact that there is no difference between the case and the case in which the land is destroyed and disposed of as a result of the establishment of new legal superficies and the case in which the land would be destroyed and disposed of separately from the case in which it would be unreasonable to apply the system of compensation for damages.

(4) It is difficult to readily conclude that the content of the mortgage holder's "defensive value of the land or building is only whether the mortgage is established on the land or whether it is established on the land or building. Rather, in addition to the appearance of mortgage, it can be sufficiently determined whether the mortgage holder can obtain satisfaction through an auction only for the land where the limitation of statutory superficies is placed. If a mortgage is established only on the land and a building on the ground, there is a case where the mortgagee only evaluates the land as a site by predicting the destruction or removal of the building without permission, and the Majority Opinion cannot be seen as a case where it seeks to grasp the value of the entire land and the building as a collateral for the purpose of establishing a mortgage on the land without obtaining separate agreements on the mortgage (see Supreme Court Decision 87Meu1564, Oct. 25, 198).

(5) In the event of an infringement on the mortgaged itself, the mortgagee should first lose the obligor’s benefit at the beginning stage of the infringement (Article 388 subparag. 1 of the Civil Act), and may prevent the expansion of damage that he/she will suffer by exercising a right to claim a real right and demanding restitution. In addition, in cases where the value of the mortgaged has been significantly decreased, the mortgagee may supplement the value of the mortgaged by exercising a right to claim a security equivalent to the original mortgaged property pursuant to Article 362 of the Civil Act, which can be substituted for the original mortgaged property, and the Supreme Court Order 97Ma2935 Decided April 28, 1998 held that the joint mortgagee may request a package auction of the land and new buildings pursuant to Article 365 of the Civil Act, and in this case, even if statutory superficies is recognized, it is nothing more than the majority opinion that merely excludes the relationship between the land and new buildings from the assessment of legal superficies, and thus, it cannot be denied.

(6) There are many cases where the owners of land and buildings today create a joint mortgage on the land and buildings. Moreover, since the issue of this case is also shaking out old houses and reconstruction of tenement houses or multi-household houses, it is expected that the issues of this case are also concerned and the interests connected thereto are very diverse. However, in the event a joint mortgage is established on the land and buildings, the factors leading to the 'base for the mortgagee' are different depending on the case, and even if there are cases where there are no actual damages, it may cause a large confusion if the establishment of statutory superficies is uniformly denied solely on the ground that a joint mortgagee is equipped with the appearance of a joint mortgage. In particular, in the case where a new building, which is a tenement house or multi-household, is sold or leased to many ordinary people, if the establishment of statutory superficies is denied by taking into account the majority opinion, it is likely that many victims may incur damage to the public interest.

C. As seen above, the majority opinion considers that the establishment of statutory superficies for a new building reconstructed after the destruction or removal of the old building is unreasonable and that it is not in harmony with specific feasibility and legal stability, and therefore, it is difficult to agree with the majority opinion, based on the subjective, ambiguous and ambiguous elements of the mortgagee's 's 's 'unite' or 'damage on the part of the mortgagee', only if the land and the ground buildings jointly become the object of mortgage. It is believed that the majority opinion should not modify the precedents that the majority opinion intends to change, but should maintain.

According to the previous precedents that affirms legal superficies only within the extent necessary for the existence of a new building where the old building is removed and more than that of the new building is constructed, it is difficult to determine the scale of the new building that has already been extinguished, and even if it is possible to determine domestic affairs, the part exceeding the scope of the new building can only be removed, and the remaining part can not only be maintained as a building, and the public interest request for maintaining the new building is not satisfied, and the legal relationship is complicated and it is difficult to proceed with the lawsuit. However, as to these problems, it is reasonable to find a way to change the previous precedents in the direction to recognize legal superficies for the whole new building in certain cases, and on the contrary, it is not right to remove a new building in any case by uniformly denying legal superficies only on the grounds that it is a common mortgage.

5. Opinion concurring with the Majority Opinion by Justice Bae Ki-won

Article 366(a) of the Civil Act provides that "where there is a building at the time of auction, if there is a building, the statutory superficies can be established only when there is a building at the time of auction. However, as a matter of the interpretation of the above provision, there is a building on the land at the time of establishment of the legal superficies. Therefore, if the installer after the establishment of the legal superficies at the time of the construction of the new building on the ground and the owner of the land and the building vary from auction after the construction of the new building on the ground, the establishment of the legal superficies for the newly constructed building is denied. In such a case, even if the establishment of the legal superficies is permitted in consideration of the public interest demand of the building protection, it would be against the mortgagee's expectation or will that expected exchange value of the land without the original building, and thus, it cannot be said that the legal superficies system is a public interest upon the request of the protection of the building with the intention of the parties concerned.

Meanwhile, according to the strict interpretation of the above provision based on the legal principle of real rights, legal superficies for a building can only be established if the initial building exists until the ownership of the building and the land is separated due to auction until the ownership of the building is separated. Even if a new building is constructed after the construction of the new building after the construction of the new building, it cannot be established as a matter of principle because the new building existed at the time of the construction of the new building. Nevertheless, in the case of a sole mortgage (if only the land on which the building is located becomes the object of mortgage), the precedents and academic theories agree to recognize the establishment of legal superficies within the scope of the new building after the construction is destroyed or demolished (a) as well as to the new building newly constructed after the destruction or removal of the building (i.e., the Dissenting opinion is also related to the case at the end of the paragraph). This interpretation is not only consistent with the demand of the mortgagee for public interest to protect the new building, but also because it is contrary to the expectation or intent of the mortgagee by understanding the value of the land at the beginning of the building and its interpretation is ultimately established as a new building as a joint mortgage.

The Dissenting Opinion argues that the establishment of statutory superficies is established on the public interest ground of protecting a new building without considering the intention or expectation of the parties, in any case, without emphasizing that the expectation or intent of the parties at the time of establishing a private mortgage or joint mortgage is entirely different as above. In the case of an existing building, the establishment of statutory superficies is denied in the case of the latter, as it goes against the objectivity and coercion of the requirements for establishing statutory superficies. However, in either case of a separate mortgage, a joint mortgage, or in principle, a new building which exists at the time of establishing a mortgage cannot be established under the principle of legal superficies, but exceptionally, the expansion of the scope of statutory superficies to protect a new building for the purpose of establishing a new building is established on the ground that it does not go against the will or expectation of the mortgagee even if it recognizes its establishment as an exception (which constitutes a single mortgage) and thus, it is not related to the requirement for establishing a new legal superficies at the time of establishing a new building for the public interest or the establishment of a new legal superficies as one of the requirements for establishing a new public interest.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) shall be delivered with the assent of all Justices Cho Jae-chul, Justice Cho Jae-chul, Justice Cho Jae-chul, Justice Kim Yong-chul.