[Plaintiff, Appellant] Plaintiff (Attorney Yang Beom-seok of Taeil Law Firm, as legal representative)
[Defendant, Appellee] Defendant (Attorney Gam Deok-ryeong of Prurun Law Firm, as legal representative)
[Judgment Below] Uijeongbu District Court Judgment 2022Na216153, decided April 11, 2024
[Order]
The judgment below is reversed, and the case is remanded to the Uijeongbu District Court.
[Reasoning]
The grounds of appeal are examined.
1. Outline of the Case
A. With respect to the land at issue as indicated in the judgment below (hereinafter “the instant land”), owned by the Defendant, a provisional attachment registration was made on July 13, 2010 by the creditor Nonparty 1, a provisional attachment registration was made on March 14, 2011 by the creditor Nonparty 2, a delinquent tax disposition attachment registration was made on March 16, 2015 by Gwanak-gu, Seoul Metropolitan City, and a delinquent tax disposition attachment registration was made on April 24, 2017 by Buk-gu, Gwangju Metropolitan City.
B. The Defendant newly built the building at issue as indicated in the judgment below (hereinafter “the instant building”) on the instant land, applied for temporary use approval to the competent authority on July 14, 2017, and completed the registration of preservation of ownership of the instant building on July 24, 2021.
C. Upon the application of Nonparty 3, a creditor of the Defendant, a decision to commence compulsory auction with respect to three parcels of land, including the instant land, was rendered on May 7, 2019. In the said compulsory auction procedure, the Plaintiff, as the successful bidder, paid the full purchase price on November 26, 2020, and completed the registration of ownership transfer of the instant land on December 9, 2020, at which time all of the provisional attachment registrations and delinquent tax disposition attachment registrations described in paragraph A above were cancelled.
D. The Plaintiff filed the instant lawsuit against the Defendant seeking removal of the instant building and delivery of its site. The court below rejected the Plaintiff’s claim on the ground that, since the Plaintiff purchased the instant land in the above compulsory auction procedure, the owners of the instant land and the instant building became different persons, and thus the Defendant acquired a statutory superficies under customary law (관습법상 법정지상권) for the ownership of the instant building.
2. Determination
A. Where the ownership of land or a building located thereon is transferred to a purchaser through a compulsory auction procedure, whether a statutory superficies under customary law is established must be determined based on whether the land and the building thereon belonged to the same person at the time the attachment takes effect due to the decision to commence the compulsory auction, not at the time the purchaser acquires ownership by paying the full purchase price. Furthermore, where a provisional attachment had been made on the land or the building thereon that is the subject of the compulsory auction prior to the decision to commence the compulsory auction, and such provisional attachment was converted into a formal attachment (본압류) by virtue of the decision to commence the compulsory auction, so that the auction procedure proceeded, whether a statutory superficies under customary law is established must be determined based on whether the land and the building thereon belonged to the same person at the time the original provisional attachment took effect (see Supreme Court en banc Decision 2010Da52140, decided October 18, 2012). Moreover, where, prior to the attachment for the compulsory auction or the provisional attachment converted into such attachment with respect to the land or the building thereon that is the subject of the compulsory auction, another provisional attachment or delinquent tax disposition attachment had already been made, and thereafter the registration of such provisional attachment or delinquent tax disposition attachment is cancelled as a result of the compulsory auction, whether a statutory superficies under customary law is established must be determined based on whether the land and the building thereon belonged to the same person at the time of the preceding provisional attachment or delinquent tax disposition attachment.
B. Examining the facts found above in light of the legal principles set forth above, since there were several provisional attachment and delinquent tax disposition attachment registrations, including the provisional attachment of Nonparty 1, made on the instant land prior to the decision to commence the auction, which were subsequently cancelled in the said compulsory auction procedure, whether the instant land and the instant building belonged to the same person must be determined as of July 13, 2010, when the earliest provisional attachment registration of Nonparty 1 was made, rather than as of the time the Plaintiff purchased the instant land in the said compulsory auction procedure. Nevertheless, the court below erred by determining whether the instant land and the instant building belonged to the same person as of the time the Plaintiff purchased the instant land, and concluding that a statutory superficies under customary law was thereby established. This constitutes an error that misapprehended the legal principles regarding statutory superficies under customary law and thereby affected the conclusion of the judgment.
3. Conclusion
Therefore, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination, in accordance with the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Eom Sang-pil (Presiding Justice), Oh Kyung-mi, Kwon Young-jun (Justice in Charge)