Scope of objects of sale in a case where the boundaries of land on the public register and external shape are different; and

Where the boundaries in the public register of land differs from the boundaries in external shape, land shall be deemed to have been traded and purchased by the parcel number, land register, and land determined by boundary in the public register, regardless of external shape boundaries, unless there are special circumstances to recognize the fact that the parties to the transaction have traded land with the intention to trade land as at the boundary in external shape.

Article 568 of the Civil Act, Articles 3 and 6 of the Cadastral Act

[Plaintiff-Appellant] Plaintiff 1 and 1182 (Law No. 1548, Oct. 22, 1985) (Law No. 212, Oct. 22, 1985) (Law No. 7666, Nov. 1548, 1988)

Park Jong-hee

Modgeukuk

Daegu District Court of First Instance (84dan2516 decided)

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

The defendant removed the portion of the (b) mentmenan sap sembar and b) 2.01 square meters in the ship that connects the plaintiff with the point of (b) 5,6,7,8, and 12th above ground surface of Daegu-gu (detailed number omitted), Daegu-gu (detailed number omitted), by removing the 2.01 square meters in each of the (a) parts of the mentmenan sembar and the b)top sembar sembar and bathtop sema.

The costs of lawsuit shall be assessed against the defendant and a declaration of provisional execution.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

According to Gap evidence evidence No. 1, which does not dispute the formation, it can be acknowledged that the registration of ownership transfer has been completed with respect to 12 square meters (hereinafter land No. 1) in Daegu Dong-gu (S.) and Daegu-gu (S.) and 12 square meters (hereinafter land No. 1), and the above land No. 2 shall be presumed to be owned by the plaintiff since no other counter-proof exists. Considering the results of the on-site inspection conducted by the court other than those mentioned in evidence No. 1 and No. 2-1 and No. 3-2 and the result of the appraisal conducted by the appraiser No. 3-1 and the court below's appraisal conducted by the appraiser No. 621-18 and 23 of the above land No. 621-23 (hereinafter land No. 1) and the above above ground No. 5-23 of the house No. 1, 40. 44 square meters (hereinafter referred to as "No. 2 of the land No. 1, the building No. 2 of this case) and the land No. 2.

In order for the Plaintiff to seek the removal of the above part of the building No. 2 and the delivery of the building No. 3 of this case from among the above building No. 1, the Defendant: (a) was the land which was originally owned by the above building No. 621 to 38 square meters of the above 621 (hereinafter referred to as the “original site”); (b) the part abutting on the road among the original site before Non-Party No. 1’s purchase of the building No. 1 from Non-Party No. 1967, which was the ownership of the above building No. 1; and (c) the ownership transfer registration of the building No. 2 was made to the non-party No. 1, the ownership transfer registration of the building No. 2 was made to the non-party No. 3, and the land No. 2, the size of the building No. 3, which was the boundary of the building No. 1, and the land No. 2, the area of the building No. 2, as the land No. 1, should be included in the land No. 2.

Therefore, if the boundary between the non-party 1 and the non-party 2 is different, the parcel number, land register, and land determined by boundary shall be deemed to have been traded and sold as the non-party 1’s external boundary regardless of the external boundary (see Supreme Court Decision 85Meu181, 1182, Oct. 22, 1985). As seen earlier, the land in this case is included in the land cadastral map and the land cadastral map of the non-party 12, including the land in this case’s cadastral map, and it is difficult for the plaintiff 1 to acquire ownership by purchasing the land at the boundary of the non-party 1’s own land at the time of the non-party 2’s entry and the non-party 9’s land cadastre. The non-party 1 and the non-party 2’s land cadastre were partitioned under the name of the non-party 1’s non-party 1’s own land and the non-party 3’s land cadastre, and there is no specific evidence that the non-party 1’s real land ownership and the non-party 9’s real ownership.

Then, the defendant purchased 621 to 38 square meters of the above 621-16 building site prior to the division from the non-party right type on June 1967, and completed the registration of ownership transfer as to the land Eul on August 22, 1969, after the land was divided into Gap and Eul. As of August 22, 1969, Gap and Eul were both owned by the above right holder, and the above right holder was owned by the above right holder, but the building and the site of this case were changed by the owner of the building prior to the division. Therefore, the above right holder, the owner of the building prior to the division, acquired the legal superficies of this case on the land of this case, and the land was divided into Eul and Eul, and the defendant could not claim for the registration of ownership transfer of the building site of this case to the non-party right holder in sequence to the non-party right holder of this case. Therefore, the plaintiff's right to purchase the building of this case, the above right holder, the above right holder of this case, had no special circumstances.

Therefore, the legal superficies under customary law, like the legal superficies under the Civil Code, are acquired by the owner of the building where one of the lands and the buildings belonging to the same ownership differs from the owner by sale or other legal acts. Thus, in this case, first of all, before or before August 22, 1969, when the non-party right holder registered the transfer of ownership in his name as to whether the land included in the dispute of this case was included, the above right holder constructed the building in the dispute of this case. As to the defendant's assertion that the above right holder had constructed the building in the dispute of this case, the above right holder's testimony of the court below's stuff attached thereto, and the witness's testimony of the above right full-time witness's statement and the result of the on-site inspection of the court below (it is apparent that the change and bath of the building of this case, which is the dispute of this case, become the building of this case, and it is hard to find that all of the above building sites of this case were the previous owner's building or the building of this case.

Finally, the defendant asserts that the delivery of the site of this case and removal of the building of this case without any economic benefit to the plaintiff as the rear part of the land of this case, which is the plaintiff's ownership, is an abuse of rights. Thus, it cannot be viewed that the fact that the site of this case is the rear part of the house cannot be regarded as any benefit to the plaintiff. Rather, according to the result of the on-site inspection by the court below, the result of appraisal by the above appraiser, and the purport of oral argument, the size of the land A on the register is 12 square meters, but not only 6 square meters in the site of this case, but also 1 square meters in the road side, and the area actually occupied by the plaintiff does not exceed 10 square meters, so it is necessary for the defendant to claim that the building of this case will collapse the building of this case to increase the utility value of the new building of this case or the building of this case, and there is no possibility that the other building of this case will be no benefit to the plaintiff.

Therefore, the defendant is obligated to remove the part of the annexed drawing (b) of the building in dispute of this case, which is part of the building in dispute of this case, which is part of the building in dispute of this case, and deliver the part of the annexed drawing (a) of this case, which is the site in dispute of this case, to the plaintiff. Thus, the plaintiff's claim of this case of this case is justified, and the judgment below is just, and the defendant's appeal is dismissed, and the costs of appeal are assessed against the defendant who is the losing

Judges Znwon (Presiding Judge) Roster