In cases where a building is constructed after the creation of a mortgage and whether legal superficies is established.

Legal superficies is established when there is a building on the land at the time of the establishment of mortgage, and there is no legal superficies on a building constructed after the establishment of mortgage.

Article 366 of the Civil Act

65Da1404 delivered on August 31, 1965 (Supreme Court Decision 1821 delivered on August 18, 1965, Supreme Court Decision 366(8)367 of the Civil Act)

The Bank for interest;

Private Teaching Institutes;

Seoul Central District Court (70 Ghana8289) in the first instance trial

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant's driving school.

Paragraph (1) of the judgment of the court below can be provisionally executed when the plaintiff deposited gold KRW 3,00,000 with the guarantee.

For the plaintiff, the defendant

(i) 1 mentorge Reap Evaluation Class 168 square meters per unit and 168 square meters per unit and per unit, attached in the attached Form Form 1 (1) building, which was established on the 3rd unit of 4th unit and 6th unit of 16th unit of forest land in Seongbuk-dong, Seongbuk-gu, Seoul; and

(2) 1 Domen, mentmen’, sap sap, sapap, 25 square meters in total, 25 square meters in total, and the indication of these drawings;

(iii) 1.2 1.2 1.2 :2 3.3 347 :47 ; 5.347 : 347 ; 6.347 : 347 ; 347 ; 6.347 ; 6.347 ;

(4) the indication of a building mentora mentora sap sap base 72 square meters in total and 72 square meters in storage;

(v)the indication of the 1rd 2nd 12 square meters in 12 square meters in 12 square meters in 2nd 10 square meters in 2nd 12, of building steel bars bean saves saves in saves, and

(6)an indication of the 15 square fluortic sap sap sap sheet per unit of building 1 fluortic 15 square sap sheet;

(7)the indication of building mentora sap sap sap sap 1500 square meters 17 square meters in total;

(8) the indication of 10 square and dynamic drawings per unit of building mentoraculium glass sapap,

(9) remove the building mentmen and the sap sap sap sap sap 1 pap sap sap sap 1 square meters and deliver the said forest and fields;

(ii) shall pay 500,000 won per month from August 1, 1970 to the completion of the above extradition.

(iii) The costs of lawsuit are assessed against the Defendant’s driving school and a declaration of provisional execution.

The part of the judgment against the defendant's driving school shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit are assessed against the plaintiff in the first and second instances.

On May 5, 1966, with respect to the 3rd 6th 4th 6th 6th 1 forest in Seongbuk-dong, Seongbuk-gu, Seoul Special Metropolitan City on May 166, 196, the registration of the establishment of superficies was passed through the registration of the establishment of a third 4th 6th 4th 6th 4th 6th 6th 196, and the registration of the establishment of superficies was passed on May 22, 1967 by the receipt of the same registration office on June 22, 1967, and the registration of the transfer of ownership was passed on June 22, 1967. At the time of the ownership of the above 19263 registry, the registration of the establishment of ownership was passed through the registration of the establishment of superficies by the plaintiff as a mortgagee under Article 9264 of the receipt of the same registration office (the metal mining corporation for the debtor of the maximum bond amounting 28 million won) and the registration of the establishment of superficies was never used as a building by each of the defendant.

The plaintiff filed an application for auction on June 1, 1970 by the Korea Metal Mining Co., Ltd., the debtor of this case, because it did not actually repay the loan to the plaintiff, and the plaintiff acquired the ownership of forest land in this case through the registration of ownership transfer as the plaintiff at the above registry office's acceptance of the above registry office on June 1, 1970. Since the defendant's driving school illegally constructed each building in the purport of this claim without the consent of the plaintiff who had superficies, and uses the land without permission, the defendant's driving school claims that the plaintiff seek the removal of the land and the delivery of forest land and the payment of damages for the rent party (this part is denied from the original judgment, and there is no appeal by the plaintiff). The defendant lent money to the plaintiff at the time of the registration of the creation of the above right to superficies and superficies, and the plaintiff's driving school seeking the removal of the ownership of forest land on the ground that the plaintiff acquired the ownership of forest land on the ground that it did not have been constructed with the plaintiff's explicit or implied consent.

However, the testimony of the witness of the court below, which seems consistent with the defendant's argument, cannot be trusted, and there is no other evidence to accept the argument as a whole certificate of the defendant, so it cannot be deemed that the building of this case was constructed with the plaintiff's consent. Legal superficies is established when there is a building on the land at the time of the establishment of the mortgage, and it is obvious that the building of this case was constructed after the creation of the mortgage at the time of the creation of the mortgage, and the defendant's assertion incidental thereto is nothing more than that of the original body,

Then, the defendant's claim for removal of the plaintiff is an abuse of right or an unfair claim that is contrary to the principles of social equity. However, there is no evidence that the defendant's request for removal of the plaintiff is an abuse of right (which is an educational facility, how many students get out of it, etc.) and there is no normal discussion about whether it is an abuse of right (which is a matter to be dealt with by the defendant's private teaching institute according to the instruction of the literature issuing authority, since it is recognized by the party's pleading that the defendant's claim for removal of the plaintiff's claim is an abuse of right, and it is not against social equity. Thus, the defendant's above defense cannot

Therefore, in this case where there is no proof that the existence of each building written in the disposition form occupies the forest land owned by the plaintiff, the defendant has the obligation to remove each building written in the purport of the claim to the plaintiff and deliver the forest land to the plaintiff. It is justified in the judgment dismissing the remaining part of the claim for damages due to no proof that there is no ground for appeal by the defendant. It is so decided as per Disposition by the application of Articles 384, 89, 95, and 199 of the Civil Procedure Act.

Judges Yong-Yek, Myun (Presiding Judge)