Whether Statutory Superficies under Customary Law Remains in Effect When Land and a Building Owned by the Same Person Come to Have Different Owners: Whether It Subsists as a Legal Norm

Origins of the Case and the Core Legal Question

Supreme Court en banc Decision 2017Da236749 rendered on July 21, 2022 (Delivery of Land) squarely addresses the following question: in a case seeking delivery of land where the land and an unregistered building had come to belong to different owners, does statutory superficies under customary law remain in effect?

The Supreme Court's core conclusions may be summarised as follows. Because Article 185 of the Civil Act recognises the creation of real rights by customary law, the effectiveness of the customary law cannot be denied merely because it restricts ownership. Because land and buildings are separate pieces of real estate, there is a recognised public-interest need to prevent the losses caused by demolition, and the customary rule operates as a supplementary mechanism to which any agreement between the parties takes precedence. Its duration follows Article 280 (1), subparagraphs 1 and 2, and Article 281 (1) of the Civil Act, and rent may be claimed, so that safeguards protecting the landowner are also in place. As no material was presented showing that the legal conviction had disappeared or that the practice had changed in substance, the Court held that the customary law remains in effect. The order reads: "The judgment below is reversed, and the case is remanded to the Jeonju District Court." The judgment's mode of reasoning is a statement of requirements (following existing precedent).

Following the structure of the issues and the decision criteria that appear in the published judgment, this analysis examines why the lower court and the Supreme Court read the same record differently.

Sources for this section: Supreme Court en banc Decision 2017Da236749 rendered on July 21, 2022 — Official text of the decision, Korean National Law Information Center

The Structure of the Issues Set by the Summary of Holdings and the Referenced Provisions

The framework of the summary of holdings, as set out in the judgment, is as follows: Whether the customary law under which, where land and the building on it that were owned by the same person come to have different owners through sale or otherwise, the owner of the building acquires statutory superficies unless there is a special agreement to demolish the building, still remains in effect as a legal norm today (affirmative).

The referenced provisions to be read together in this case are Articles 185, 280 (1), subparagraphs 1 and 2, 281 (1), 305 and 366 of the Civil Act, Article 6 of the Act on Standing Trees, and Article 10 of the Provisional Registration Security Act. The first step is to separate, among the constituent elements or requirements for the creation of rights laid down by the wording of these provisions, the extent to which matters fall within statutory interpretation from the point at which they fall within the finding of individual facts.

In relation to prior precedent, this judgment stands in the position of following existing case law. Read alongside the referenced precedents (Supreme Court Decision 66Da1844 rendered on December 20, 1966 (Collection 14-3, Civ. 332); Supreme Court Decision 67Da2007 rendered on January 31, 1968 (Collection 16-1, Civ. 37); Supreme Court Decision 85DaKa2275 rendered on September 9, 1986 (Gong1986, 1301); Supreme Court Decision 92Da3984 rendered on October 27, 1992 (Gong1992, 3255); Supreme Court Decision 93Da26687 rendered on December 28, 1993 (Gong1994Sang, 521); Supreme Court Decision 2002Da61934 rendered on December 26, 2003 (Gong2004Sang, 209); Supreme Court Decision 2006Da54804 rendered on September 6, 2007; Supreme Court Decision 2005Da41771, 41788 rendered on February 15, 2008; and Supreme Court Decision 2013Da43345 rendered on September 12, 2013), the judgment shows how the Court rearranged the factual elements of the specific case while maintaining the outer bounds of the existing legal principle.

Sources for this section: Supreme Court en banc Decision 2017Da236749 rendered on July 21, 2022 — Official text of the decision, Korean National Law Information Center

Analysis of the Supreme Court's Summary of Judgment and Its Key Holdings

The core of the summary of judgment set out by the Supreme Court is as follows. [Majority Opinion] The customary law under which, where land and the building on it that were owned by the same person come to have different owners through sale or otherwise, the owner of the building acquires statutory superficies unless there is a special agreement to demolish the building, should be regarded as still remaining in effect as a legal norm today. The specific reasons are as follows. (1) Article 185 of the Civil Act provides that "No real right may be created at will except as provided by Acts or customary law," thereby recognising the creation of real rights by customary law. Insofar as a limited real right called statutory superficies is recognised by customary law, the landowner cannot but be restricted in the exercise of ownership to the extent generally recognised as necessary for the use of the building. Accordingly, the circumstance that, as a result of recognising statutory superficies under customary law, the landowner is restricted to a certain extent in the exercise of ownership cannot serve as a ground for denying the formation of statutory superficies under customary law. (2) As the Korean legal system treats land and the building on it as separate and independent pieces of real estate, where land and the building on it that were owned by the same person come to have different owners through sale or otherwise, it is necessary to take measures enabling the value of the building to be preserved to a certain extent, unless there is a particular agreement between the landowner and the building owner on the use of the site. Statutory superficies under customary law is recognised precisely in such a situation, out of the public-interest need to prevent the socio-economic loss caused by the demolition of buildings. The statutory superficies under Article 305 of the Civil Act, the statutory superficies under Article 366 of the Civil Act, the statutory superficies under Article 6 of the Act on Standing Trees, and the statutory superficies under Article 10 of the Provisional Registration Security Act are likewise all mechanisms designed to preserve the value of buildings or standing trees where land and the building or standing trees on it that were owned by the same person come to have different owners for certain reasons. Since case law gives priority to and respects any agreement between the building owner and the landowner on the use of the site where land and the building on it that were owned by the same person come to have different owners through sale or otherwise, statutory superficies under customary law can be regarded as being recognised on a supplementary basis where there is no agreement between the parties. In view of these points, it is difficult to conclude that recognising statutory superficies under customary law is inconsistent with the overall legal order, of which the Constitution is the supreme norm, or that its legitimacy and reasonableness cannot be acknowledged. (3) Unless there are special circumstances, the provisions of the Civil Act on superficies apply mutatis mutandis to statutory superficies under customary law; therefore, where the parties have not separately agreed on the duration of the statutory superficies under customary law, its duration is the period prescribed in the subparagraphs of Article 280 (1) of the Civil Act pursuant to Article 281 (1) of the Civil Act. Accordingly, the duration of statutory superficies for the purpose of owning a solid building is 30 years (Article 280 (1), subparagraph 1 of the Civil Act), and the duration of statutory superficies for the purpose of owning other buildings is 15 years (Article 280 (1), subparagraph 2 of the Civil Act); statutory superficies under customary law thus subsists only for a fixed period. The landowner may claim rent from the building owner holding statutory superficies under customary law, and may sue for payment of rent even before a judgment fixing the rent is rendered. In this way, mechanisms for protecting and accommodating the landowner have been put in place alongside the recognition of statutory superficies under customary law. (4) It may be said that, over the long period since the Supreme Court recognised statutory superficies under customary law as a form of customary law, considerable changes have occurred in Korean society in the value of land, the concept of ownership, landowners' awareness of their rights, and the like. Even so, the public-interest need to prevent the socio-economic loss caused by the demolition of buildings and the need to protect the interests of building owners or users continue to be emphasised no less. Nor can any material be found from which it could be recognised that the conviction of members of society regarding the legally binding force of the custom concerning statutory superficies under customary law has disappeared, or that such practice has changed in substance. [Dissenting Opinion by Justice Kim Jae-hyung] The custom under which a real right called statutory superficies arises when land and the building on it that were owned by the same person come to have different owners through sale or otherwise cannot be regarded as having satisfied the requirements for formation as customary law. Even if such customary law had been formed, members of society today no longer hold a conviction as to the legally binding force of that practice, and it is inconsistent with the overall legal order, of which the Constitution is the supreme norm; therefore, its effectiveness as a legal norm should not be recognised. Accordingly, the existing precedents broadly recognising statutory superficies under customary law should be overruled.

In particular, the passage in the judgment that directly supports the conclusion is the following: "[Majority Opinion] The customary law under which, where land and the building on it that were owned by the same person come to have different owners through sale or otherwise, the owner of the building acquires statutory superficies unless there is a special agreement to demolish the building, should be regarded as still remaining in effect as a legal norm today."

This passage is not merely an abstract declaration; it serves as the reference point for identifying which legal premise the court below omitted, or which factual elements it overvalued or undervalued.

Sources for this section: Supreme Court en banc Decision 2017Da236749 rendered on July 21, 2022 — Official text of the decision, Korean National Law Information Center

Key Decision Factors Identified in the Judgment and a Record Comparison Table

The table below sets out the decision factors to which the Court attached weight in Decision 2017Da236749 and the role each factor played in the order (reversal and remand).

Sources for this section: Supreme Court en banc Decision 2017Da236749 rendered on July 21, 2022 — Official text of the decision, Korean National Law Information Center

Competing Readings of the Same Facts

In this case, the court below rejected the defendants' defence that they had acquired statutory superficies under customary law, on the ground that the ownership of the land and of each building could not be regarded as having belonged to the same person when Non-party 2 donated the land to Defendant 1. By contrast, the Supreme Court's legal reasoning examines separately whether the customary law remains in effect as a legal norm and whether there is an agreement between the building owner and the landowner on the use of the site.

Accordingly, when analysing similar cases, one should not merely quote the concluding sentence but should test, as a counter-hypothesis, how the conclusion would change if any one of the decision factors listed in the table above were absent.

Sources for this section: Supreme Court en banc Decision 2017Da236749 rendered on July 21, 2022 — Official text of the decision, Korean National Law Information Center

Remaining Questions and Conditions for Re-examination

The follow-up question that remains after reading this judgment is as follows: between the public interest in preventing demolition and the restriction of land ownership, how long will customary law remain a supplementary solution?

It is also clear what kind of subsequent material or accumulated case law would require this decision framework to be re-examined: it may be revisited if material is presented showing that the legal conviction underlying the custom has disappeared or that the practice has changed in substance.

This research analysis was prepared by comparing, as of October 21, 2026, the original text of Supreme Court en banc Decision 2017Da236749 rendered on July 21, 2022, as published on the Korean National Law Information Center, with the referenced provisions; it is not a substitute for the conduct of litigation by any particular party or for legal advice.

Sources for this section: Supreme Court en banc Decision 2017Da236749 rendered on July 21, 2022 — Official text of the decision, Korean National Law Information Center