Where superficies have been established for the purpose of using an existing building, whether Article 280(1)1 of the Civil Act on the shortest term of superficies applies (negative)

In light of the fact that Article 280 (1) 1 of the Civil Act provides that the duration of a building for the purpose of owning 'the buildings with stone, stone, brick, brick or any other solid building similar thereto or superficies for the purpose of owning 'the trees' cannot be reduced to less than 30 years, the provision for the shortest duration of a building under the Article 280 (1) 1 of the Civil Act applies only to cases where the superficies was established for the purpose of constructing the buildings, etc. owned by the superficies or planting trees and using the land.

Articles 280(1)1 and 279 of the Civil Act

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

Korea Venture Co., Ltd. (Law Firm Nam-gu General Law Office, Attorneys Lee Byung-il et al., Counsel for the defendant-appellant)

Korea

Seoul High Court Decision 95Na21107 delivered on October 6, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigation performer are also examined.

Since superficies is the principal contents of the ownership of a building, other structure, or trees on another person's land, not the ownership of a building, or a structure, or trees, but the use of another person's land is not the principal contents of the superficies at the time of establishing the superficies, superficies can be established effectively even if there is no other structure or trees at the time of the contract, and even if the existing building, other structure, or trees are destroyed or lost, superficies is not extinguished unless the duration expires, as otherwise pointed out in a lawsuit. However, in light of the fact that Article 280 (1) 1 of the Civil Act provides that the duration of superficies for "the purpose of possession" of stone, stone, brick, brick, or any other solid building or superficies similar thereto, or superficies for the purpose of ownership shall not be reduced to less than 30 years. Therefore, the minimum term provision of the above Act regarding the minimum term of superficies is applied only where a superficiary constructs a building, etc. owned by him or establishes superficies for the purpose of using the land

Upon examining the reasoning of the judgment below in light of the records, all of the measures that the court below held that the superficies of this case was agreed to be 15 years, and for the purpose of using the building owned by the plaintiff as the founder of superficies, and that the provisions of Article 280 (1) 1 of the Civil Act, which set the shortest term of the building constructed and constructed for 30 years, are not applied, and that the term has expired is just, and there is no error of law by misunderstanding facts due to violation of the rules of evidence, such as the theory of lawsuit,

Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)