[1] The utility of the superficies and the contents of the claim for exclusion of disturbance where superficies are acquired with respect to the land

[2] In a case where a third party has a right to use and benefit from the pertinent land against a person who created superficies, whether such right may be asserted against a person with superficies (negative)

[1] Articles 214, 290(1), and 370 of the Civil Act / [2] Articles 185, 214, and 290(1) of the Civil Act

[1] Supreme Court Order 2003Ma1753 dated March 29, 2004 (Gong2004Sang, 781)

Korea Bank (Law Firm Peak, Attorneys Kim Awarding-hoon, Counsel for defendant-appellant)

Defendant (Law Firm Jeong, Attorneys Jeong Ho-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na81548 delivered on July 15, 2005

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Where a superficies is acquired in order to acquire a mortgage on land as well as to secure the security value of the mortgage, the superficies is the purpose of securing the security value of the mortgaged real estate by excluding any infringement which a third party acquires a right to use or brings down the security value of the mortgaged real estate until the mortgage is executed, barring special circumstances. Thus, where a third party constructs a new building on the land which is the object of the mortgage, barring special circumstances such as that the third party has a right to oppose the superficiary, the superficiary may seek the removal of the new building under way as a claim for exclusion of interference and delivery of the site (see Supreme Court Order 2003Ma1753, Mar. 29, 2004).

On the other hand, since a real right cannot be created at will other than that provided for by law or customary law (Article 185 of the Civil Act), if a registration for creation of a superficies has been made, the content and scope of the superficies becomes effective on a detailed basis as registered, and even if a third party has a contractual right to use and benefit from the land, such circumstance alone does not make it possible to oppose a person with superficies.

Based on the evidence of employment, the lower court: (a) obtained the consent of Nonparty 2, the owner of the instant land; (b) conducted new construction works by granting the permission to construct a new building on the instant land on the ground surface, the scale of eight stories above ground; (c) subsequently, the Defendant changed the construction permission to the name of the Defendant for the purpose of securing the claim for the construction price in accordance with the agreement with Nonparty 1; (d) on the civil lawsuit between the Defendant and Nonparty 1, Nonparty 2, the aforementioned construction permission was changed to the name of Nonparty 2; and (e) on the other hand, if Nonparty 1 did not pay the construction cost by the agreed date, the said construction permit was changed to the name of Nonparty 1’s debt payment for the Defendant; and (e) there was no arbitrary adjustment including the agreement to change the said construction permit to the name of the said Defendant; and (e) there was no further violation of law by the Defendant’s establishment of new building and superficies on the premise that the new building was newly constructed and existing at that time, and there was no further completion of the said construction permit.

2. According to the judgment of the court below and the records, the plaintiff filed a claim for removal of interference based on superficies and filed a request for removal of the building of this case and it is obvious that the court below cited it. Thus, the court below did not err in the misapprehension of legal principles as to the exercise of subrogation right as alleged in the ground of appeal. Further, the argument that it is improper to designate the counterpart to the removal and delivery of this case as non-party 2, as the defendant did not claim in

3. Generally, res judicata or executory power of the judgment extends to a person who succeeds to the position of the party in relation to the legal relationship which is the subject matter of lawsuit from the party after the closing of argument. However, as seen earlier, the right acquired by the defendant through voluntary conciliation with Nonparty 2 is merely an obligatory right to occupy and use the land of this case for the construction of the building in question, and thus, it shall not affect res judicata or executory power of the aforementioned voluntary conciliation against the plaintiff who acquired the superficies on the land of

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the subjective scope of res judicata.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)