The following conclusion derives from this study on 'the legal status of a person who takes over the ownership of a building and the legal superficies from another person who has the title to the superficies in customary law, unregistered, which is effected with special reference to the collegiate judgement of the Supreme Court(84다카1131 and 1132), delivered on 9 April 1985.
First of all, if the legal superficies were transferred without having been registered, the transferee can not acquire the title to it. Because, while the acquisition of the jus in rem according to the provision of Article 187 of the Civil Code does not require the registration, the latter article adds the saving clause that "the immovable shall not be disposed of unless it has been registered".
Furthermore, if unregistered customary superficies were transferred with a building, the grantee can acquire effectively the ownership of the building but not of the superficies, because the saving clause of the Article 187 is regarded as 'provision of effect'. Accordingly, the grantee of the ownership of the building could not lay claim to the customary superficies against the owner of the land in question.
Secondly, when only the building were transferred after the customary legal superficies for the building had been established, the superficies can not transferred. This interpretation would coincide with the purpose of the Civil Code which maintain the formalism with regard to the change of jus in rem.
Thirdly, we could point out the unreasonableness of the above-mentioned judgement, from two viewpoint. On one hand, the Court, on the basis of the principle of good faith, rejected, despite the saving clause prohibiting the disposal of the superficies before the registration, the claim of the land's owner for the destruction of the building against the grantee of the building who have not yet acquired the superficies but only have the right of claim to transfer of the registration thereof. This attitude could be a departure from the interpretation of the provision(of Article 187). The owner of land is obliged to recognize the right of a buildings owner who has effectively acquired the legal superficies, and to cooperate for the realization of the right. However, he has no duty to cooperate for the realization of the interest of the grantee of the building who has not yet acquired the superficies but only has an interest in the acquisition of the superficies through the exercise of the right of claim to transfer of the registration thereof.
On the other hand, even if the grantee of the building could claim in subrogation for the registration of the creation of legal superficies, he cannot claim for the utilization of the land, unless he become the superficiary through the registration of the creation and tranfer of the superficies. In other words, the grantee of the building cannot be given any title to the occupation of the land in question by the simple fact that he is competent to claim in subrogation for the registration of the creation of legal superficies. Consequently, the grantee of the building cannot be the superficiary without the completion of the registration of the transfer of the superficies to his own name.
In conclusion, we could not be convinced of the decision of the Supreme Court to reject, for the reason of the claim in subrogation for the registration of the creation of legal superficies, the claim of the owner of the land for the destruction of the building.