Reference time for customary statutory superficies in compulsory auction

1. 01Question

   When the ownership of land or the building on it passes to the purchaser in a compulsory auction, at which point in time must it be asked whether the land and the building belonged to the same person for a customary statutory superficies to arise, where a provisional attachment had been registered before the auction-start decision and was later converted into a principal attachment, or where an earlier provisional attachment or a tax-collection attachment was cancelled by the auction?

2. 02Holding

   It is not the time the purchaser pays the full price and acquires ownership, but the time the seizure takes effect through the compulsory auction-start decision. Where a provisional attachment predates that decision and was converted into a principal attachment, the time the original provisional attachment took effect governs; and where an earlier provisional attachment or tax-collection attachment is cancelled by the auction, the time of that earlier attachment governs. The customary statutory superficies is then decided by whether the land and the building belonged to the same person at that governing time.

   Summary of the holding, verbatim

   토지 또는 그 지상 건물의 소유권이 강제경매로 인하여 그 절차상 매수인에게 이전되는 경우에는 그 매수인이 소유권을 취득하는 매각대금의 완납 시가 아니라 강제경매개시결정으로 압류의 효력이 발생하는 때를 기준으로 토지와 지상 건물이 동일인에게 속하였는지에 따라 관습법상 법정지상권의 성립 여부를 가려야 하고

   Unofficial English translation

   Where ownership of land or a building thereon is transferred by compulsory auction to the purchaser in the proceedings, whether statutory superficies under customary law has been created must be determined by reference to the time when the attachment takes effect by the commencement decision of the compulsory auction, according to whether the land and the building thereon belonged to the same person, and not by reference to the time of full payment of the sale price at which the purchaser acquires ownership, and

3. 03Disposition

   Reversed and remanded Stated in the decision

   원심판결을 파기하고, 사건을 의정부지방법원에 환송한다.

   Unofficial English translation

   The judgment of the court below is reversed, and the case is remanded to the Uijeongbu District Court.

4. 04Form of the test

   Elements stated Stated in the decision

   선행 가압류나 체납처분압류 당시를 기준으로 토지와 그 지상 건물이 동일인에게 속하였는지에 따라 관습법상 법정지상권의 성립 여부를 판단하여야 한다.

   Unofficial English translation

   Whether statutory superficies under customary law has been created must be determined according to whether the land and the building thereon belonged to the same person at the time of the preceding provisional attachment or the attachment for disposition for tax delinquency.

5. 05Factors

   • 강제경매개시결정으로 압류의 효력이 발생하는 때를 기준으로 토지와 지상 건물이 동일인에게 속하였는지에 따라
   • 강제경매개시결정 이전에 가압류가 되어 있다가 그 가압류가 강제경매개시결정으로 인하여 본압류로 이행되어 경매절차가 진행된 경우에는
   • 애초 가압류의 효력이 발생한 때를 기준으로
   • 강제경매를 위한 압류나 그 압류로 이행된 가압류가 있기 이전에 다른 가압류나 체납처분압류가 있었다가 그 후 강제경매로 인하여 가압류등기나 체납처분압류등기가 말소되는 경우에는

   Unofficial English translation

   • According to whether the land and the building thereon belonged to the same person at the time when the attachment takes effect by the commencement decision of the compulsory auction

   • Where a provisional attachment existed before the commencement decision of the compulsory auction and that provisional attachment was converted into a formal attachment by the commencement decision of the compulsory auction and the auction proceedings were conducted,

   • By reference to the time when the initial provisional attachment took effect,

   • Where, before there was an attachment for compulsory auction or a provisional attachment converted into that attachment, another provisional attachment or an attachment for disposition for tax delinquency existed but the provisional attachment registration or the attachment registration for disposition for tax delinquency was later cancelled by the compulsory auction,

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2012. 10. 18. 선고 2010다52140 전원합의체 판결(공2012하, 1877)

   Unofficial English translation

   Supreme Court en banc Judgment 2010Da52140 decided October 18, 2012 (Gong 2012 Ha, 1877)

   Decisions referred to

   대법원 2012. 10. 18. 선고 2010다52140 전원합의체 판결(공2012하, 1877)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   If an earlier provisional attachment was released or cancelled before the auction began, without the auction cancelling it, does its registration date still fix the time at which the common ownership is tested?

   A later decision extending or limiting this reference time to attachments released before the auction would require this entry to be read again. So would an amendment to Article 83(1) and (4) or Article 276 of the Civil Execution Act, or to Article 24 of the National Tax Collection Act, which govern the effect and cancellation of those attachments.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

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