When superficies created at the same time as the creation of a mortgage are extinguished by the exercise of a mortgage, the creation of legal superficies

Even if a superficies was created at the same time for the mortgagee at the time of the establishment of a mortgage on the site, there is no special reason such as the ownership of the building on the site at the time of the establishment of the mortgage, the removal of the building, and if the superficies has been extinguished due to the execution of the mortgage, the statutory superficies for the building shall not be created.

Article 366 of the Civil Act

Supreme Court Decision 76Da1078, 1079 Delivered on July 12, 197

Plaintiff (Attorney Kim Young-hwan, Counsel for plaintiff-appellant)

Defendant

Incheon District Court Decision 90Na608 delivered on May 31, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1) The lower court did not err by misapprehending the facts against the rules of evidence or by failing to exhaust all necessary deliberations.

2) In case where the land and buildings owned by the same person were owned by different owners due to the execution of mortgage, the owner of the building acquires superficies for use and profit-making of the building on the site of the building in accordance with Article 366 of the Civil Act. Even if the defendant simultaneously created superficies for the mortgagee at the time of the establishment of mortgage on the site, there are no special reasons such as holding the building in this case on the site at the time of the establishment of mortgage and removing the building, and there is no statutory superficies for this case where the superficies has been extinguished by the execution of mortgage (see Supreme Court Decision 76Da1078, 1079 delivered on July 12, 197).

The judgment of the court below that the legal superficies for the building of this case occurred on the site of this case in accordance with the above legal principles is just and there is no ground for appeal.

Therefore, the appeal is 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.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)