1. The court below affirmed the judgment of the court of first instance which held that the defendant is obligated to deliver the dispute portion of this case to the plaintiff and return unjust enrichment, unless the defendant proves his legitimate title to possess the dispute portion of this case, which is part of the building of this case in the judgment of the court of first instance.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

The Plaintiff, as an organization comprised of co-owners of the building of this case, is responsible for all management and operation of the building of this case, such as the overall management and surrender of the building of this case, and received rents from lessees and carries out the business of distributing them to co-owners. The Defendant primarily claims the delivery of the dispute of this case and the return of unjust enrichment on the premise that it is an illegal occupant of the dispute of this case. In addition, the Plaintiff demanded the delivery of the dispute of this case and the return of unjust enrichment on the premise that the Defendant transferred the dispute of this case to the lessee

In a case where the Defendant illegally occupies the dispute portion of this case, the legal relationship claiming delivery of the dispute portion of this case and return of unjust enrichment against the Defendant can be deemed based on the ownership of the building of this case. However, even according to the Plaintiff’s assertion, the Plaintiff is not the owner of the building of this case, but the organization with the right to manage the building of this case on behalf of the co-owners of the building of this case. Thus, the Plaintiff cannot exercise the right to claim a return, etc. reverted to the owner

Nevertheless, the court below affirmed the judgment of the court of first instance which accepted the Plaintiff’s primary claim by deeming that the Plaintiff, who is the possessor of the dispute of this case, can either deliver the dispute of this case and claim for restitution of unjust enrichment. The court below erred by misapprehending the legal principles as to the subject of exercise of the right, such as the claim for restitution against the illegal possessor, which affected the conclusion of the judgment. The ground of appeal

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

Justices Park Jong-young

Justices Kim Jae-tae

Justices Kim Jae-in