[1] In a case where land and a building belong to the same owner, but both owners were different due to sale and purchase or other causes, but there is an agreement between the parties to remove the building, whether the building owner acquires legal superficies under customary law (negative)

[2] Requirements for recognizing the effect of excluding the creation of legal superficies under customary law as an agreement on the removal of a building

[3] The case holding that where the owner of a land and a building have agreed to remove the previous building after only donated the land to another person and to re-built the building under his own name on that ground, the agreement on the removal of the building cannot be deemed as an agreement with the owner of the building to intend to terminate the continuous use of the land, and it cannot be deemed as an agreement, and thus

[1] Even if land and a building belong to the same owner, but the owner of the building or the land became different due to sale and purchase of the building or for any other reason, if there was an agreement between the parties to remove the building, the owner of the building may not acquire legal superficies under customary law for the building against the landowner.

[2] The reason why the agreement on the removal of a building is the passive requirement for the creation of legal superficies under customary law can be deemed to have an implied agreement to allow the owner of the building to continue to use the land even after the change of the owner of the land and the owner of the building. On the other hand, statutory superficies under customary law is not the fundamental right to the ownership of the building on another's land, but the intrinsic right to use another's land for the ownership of the building, and the presumption of the parties' "explient agreement" as mentioned above is the intention of " continuously using the land for the ownership of the building". Thus, the effect that the above implied agreement on the removal of the building can be acknowledged to exclude the creation of legal superficies under customary law, i.e., the effect that the above implied agreement on the removal of the building can only be recognized by the parties' intent to continue to suspend the use of the land by removing the building, as well as by the form of the removal of the building.

[3] The case holding that where the owner of a land and a building have agreed to remove the previous building after only donated the land to another person, and to re-built the building under his own name on that ground, the agreement on the removal of the building cannot be deemed as an agreement with the owner of the building to intend to continue the use of the land, and it cannot be deemed that the creation of a statutory superficies

[1] Articles 279 and 366 of the Civil Act / [2] Articles 105, 279, and 366 of the Civil Act / [3] Articles 105, 279, and 366 of the Civil Act

[1] Supreme Court Decision 87Meu279 delivered on September 27, 198 (Gong1988, 1337) Supreme Court Decision 96Da4080 delivered on January 21, 1997 (Gong1997Sang, 608)

Plaintiff (Attorney Choi Jong-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Dong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na45909 delivered on November 3, 1998

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. A. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

The instant site and building were owned by the Nonparty, who was originally owned by the Plaintiff’s father, and the Nonparty, on August 14, 1993, donated only the land among them to the Plaintiff, who was son, and on August 18, 1993, the ownership transfer registration was made in the name of the Plaintiff on the instant site.

Around June 1993, the transfer of the above donation, the Nonparty requested a certified architect to design a new building in order to remove the Gu building on the instant site and construct a new building. On August 9, 1993, the said donation, after receiving a written consent from the Plaintiff on the use of the instant site from the Plaintiff and submitting it to the construction permit application document, and obtained a construction permit for a new building of 2nd, 6th, 2,745.72 square meters from the competent authority as the owner of the building.

After that, the Nonparty tried to start the construction work of removing the instant building and constructing the new building, but from August 28, 1993 to November 13, 1993, the Nonparty failed to remove the instant building and to proceed with the construction work of the new building on the wind that three provisional attachment registrations have been filed for the instant building.

On January 23, 1996, the Defendant: (a) awarded a successful bid of KRW 75,00,000 for the instant building in a compulsory auction procedure with respect to the instant building; and (b) paid the successful bid price on March 14, 1996.

B. In light of the above facts, when both owners change due to the sale and purchase of the building or the land after belongs to the same owner, the owner of the building, in principle, shall acquire legal superficies under the customary law for the building. However, in special circumstances, such as there was an agreement to remove the building, it is reasonable to deem that there was an agreement between the non-party and the plaintiff to remove the building of this case and to have the plaintiff possess the land ownership not interfered with the building of this case. Accordingly, the non-party did not acquire legal superficies under the customary law to use the building of this case for the building of this case. Thus, the non-party acquired legal superficies under the customary law to use the building of this case for the building of this case by donation only to the plaintiff, and thus, the non-party acquired legal superficies under the non-party’s customary law to use the building of this case for the building of this case. Accordingly, it is reasonable to have rejected the plaintiff’s claim for removal of the building of this case and the plaintiff’s claim for the delivery of the land of this case against the non-party.

2. Even if land and a building belong to the same owner, but the owner of the building or the land became different due to sale and purchase of the building or for any other reason, if there was an agreement between the parties to remove the building, the owner of the building cannot acquire any customary statutory superficies for the building (see, e.g., Supreme Court Decision 87Meu279, Sept. 27, 198).

As such, the reason why the agreement on the removal of a building is the passive requirement for the creation of legal superficies under customary law can be seen as an implied agreement to allow the owner of the building to continue to use the land even after the change of the owner of the land and the owner of the building. On the other hand, statutory superficies under customary law is not the fundamental right to the ownership of the building on another's land, but the intrinsic right to use the land of another's land for the ownership of the building, and the presumption of "explient agreement" as mentioned above is the intention of " continuously using the land" for the ownership of the building. Therefore, the effect of the implied agreement on the removal of the building can be recognized to exclude the creation of legal superficies under customary law, i.e., the effect that the above implied agreement on the removal of the building can only be recognized by the agreement of the party who intends to continue to use the land by removing the building, as well as by the form of removal of the building.

However, according to the reasoning of the judgment below, the non-party did not intend to remove the building of this case to discontinue the continuous use of the land by removing the building of this case, but did not remove the building, but did not construct the building again in his own name on that ground.

Therefore, even if there was an agreement between the Nonparty and the Plaintiff to remove the instant building, such agreement is nothing more than an agreement premised on the continuous use of the land by the Nonparty, and it cannot be deemed an agreement that intends to terminate the continuous use of the land. Therefore, the validity of excluding the occurrence of statutory superficies under customary law shall not be recognized.

Nevertheless, the court below determined that there was an agreement between the non-party and the plaintiff to remove the building of this case and to hold the land ownership that is not disturbed by the building, that is, the agreement to exclude the creation of legal superficies under customary law, and rejected the defendant's defense that the non-party acquired legal superficies under customary law to use the site of this case for the building of this case. The court below erred in the misapprehension of legal principles as to the establishment of legal superficies under customary law, or in failing to sufficiently examine the intention of the party related to the removal of the building of this case. The part of the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)