Whether a landowner may demand the owner of a building constructed on the ground to leave the building on the ground of an illegal possession of the site (negative)

Even if the owner of a building occupies the land owned by another person through the possession of the building, he/she may request the removal of the building and delivery of the part of the building site, and may not request the person who occupies the building owned by him/her to leave the building from the building.

Articles 213 and 214 of the Civil Act

Plaintiff (Law Firm Ho, Attorneys Kim Yong-ok et al., Counsel for plaintiff-appellant)

Defendant

Seoul District Court Decision 97Na37240, 37257 delivered on October 16, 1998

The judgment of the court below is reversed and the case is remanded to the Seoul District Court Panel Division.

We examine the grounds of appeal.

1. Based on its reasoning, the court below rejected the Defendant’s assertion on the following grounds: (a) the Plaintiff was awarded a successful bid in the auction procedure and acquired ownership; and (b) the Defendant was obliged to leave the above building, barring any special circumstances, and (c) the Defendant’s assertion on statutory superficies, i.e., the land and the building were owned by the Nonparty Co-Defendant of the first instance trial at the time of the establishment of the instant right to collateral security; and (d) the establishment of statutory superficies was established with respect to the above building; (b) in short, the building for which the right to collateral security was established only remains due to registration; and (c) the Defendant was constructed with the building (three floors) newly constructed by the Nonparty as the owner of the building at the time of the establishment of the right to collateral security (three floors) and the statutory superficies that can be established only in cases where the land and the building are owned by the same person at the time of the establishment of the right to collateral security was not established.

2. First, according to the judgment of the court below, even if the above building owned by the defendant, even if the defendant occupies the above building through the ownership of the above building, the plaintiff can request the removal of the building and the delivery of its site, and cannot request the defendant who possesses his own building to leave the building. The judgment of the court of first instance recognized that the above non-party actually controls the above building (which is not recognized as a legal owner) and ordered the removal of the building and delivery of its site, and ordered the defendant to leave the building for the removal and delivery, and it is difficult to accept the decision of the court of first instance that maintained the conclusion of the court of first instance ordering the removal of the building as it is, because the court of first instance recognized the ownership of the building differently from the judgment of the court of first instance.

In addition, while the court below recognized the building owner on the building permit of the building of this case at the time of establishing the right to collateral security of this case as the non-party, the defendant actually constructed this building and later changed the owner's name to the defendant, it is difficult to accept such a disposition.

3. At the time of the establishment of the instant right to collateral security, as recognized by the lower court, if the said right to collateral security was created in the name of the Nonparty with respect to the above-story building and the land, if the above-story building remains without removal, the legal superficies on that part may be effective. Therefore, the lower court should have deliberated and examined whether the above building was removed.

4. Ultimately, the Defendant’s appeal assigning these points is with merit, and thus, the lower judgment is reversed and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)