[가건물철거등청구사건][고집1972민(1),59]
Whether a person who reserved the right to use and benefit from land and made a title trust may request the exclusion of disturbance by subrogation of the trustee without cancelling the trust contract.
A person who reserved the right to use and benefit from land and made a title trust may request the exclusion of interference with the ownership on behalf of the trustee who is the owner in order to preserve the claim.
Article 404 of the Civil Act
Plaintiff 1 and one other
Defendant 1 and nine others
Seoul Central District Court (69Do1110, 11199) in the first instance trial
The appeal is dismissed.
However, as to the modification of the purport of the claim, the original judgment is changed into 2,445 square meters in land allotted by the authorities in recompense for development outlay (B) of Dongdaemun-gu Seoul Metropolitan Government and 887 square meters in Dongdaemun-gu Seoul Metropolitan Government, 2,423 square meters in 6bbebs in 150.
The costs of appeal shall be borne by the defendants.
Defendant 2 modified the purport of the claim from the plaintiffs at the trial of Dongdaemun-gu, Seoul, 87 large 2,423 square meters and 20 square meters above ground surface drawings; the land was removed; Defendant 1 removed 1’s title of the same ground surface drawings and 14 square meters of the extract appraisal building; Defendant 3 removed 1’s surface of the same ground surface and 15 square meters of the extract appraisal building; Defendant 1’s surface of the same ground surface; Defendant 4 removed 1’s surface of the same ground surface and 15 square meters of the extract appraisal building; Defendant 1’s surface of the same ground surface; Defendant 1’s surface of the same building and 1’s extract appraisal building; and Defendant 5’s 1’s building and 1’s extraction and removal of the same ground surface of the same building; and Defendant 1’s building’s appraisal and extraction of the same ground surface of the same 7’s surface.
The costs of lawsuit are assessed against the defendants and a declaration of provisional execution.
The defendants shall revoke the original judgment.
The plaintiffs' claims are dismissed.
The court costs are assessed against all the plaintiffs in the first and second instances.
The 2,445 square meters of the Dongdaemun-gu Seoul Metropolitan Government Cheongyang-dong Cheongyang-dong 150 Dop was the land substitution confirmation, and the present owner of the land is the non-party 1 corporation, and the facts that the defendants own the building stated in the purport of the claim on the above site and occupy the site are no dispute between the parties. Thus, unless the defendants have the right to occupy the above site differently, the defendants are obligated to remove each building owned by the non-party 1 corporation, the owner of the site and deliver the site. On the other hand, under the evidence No. 8, No. 22 through No. 24 and No. 15, there is no dispute over the establishment of the document's authenticity, the plaintiffs' right to use and profit from the above land is reserved and it is acknowledged that the non-party 1 corporation was the non-party 1 corporation, and there is no other ground for the plaintiffs' claim to preserve the above claim.
The defendants asserted that the building of this case was constructed before 10 years ago and completed registration. The price exceeds several times as much as the site price. Thus, the removal of the building of this case would result in the national loss and thus, even if there is a fact that the plaintiff's claim should be rejected, it does not constitute a ground for rejecting the plaintiff's claim. Thus, the above defense cannot be accepted as it does not constitute a ground for rejecting the plaintiff's claim.
The defendants also filed a claim against the plaintiff in order to sell the land of this case to others without using it. Thus, the plaintiff's defense of abuse of rights is an abuse of rights, but such fact alone cannot be viewed as abuse of rights, so the above defense is not justified by its own assertion
The defendants also asserted that the land and buildings of this case were originally owned by the non-party 2 before they were transferred to Seoul Special Metropolitan City and were owned by the non-party 1 stock company after they were transferred to Seoul Special Metropolitan City as land secured by the recompense for development outlay, and the buildings were owned by the defendants. Accordingly, the defendants' payment of rent is a separate issue and there is no obligation to remove the buildings. However, the above defense is not acceptable even if it is acknowledged by all the evidence of this case.
Therefore, since the plaintiffs' claims are justified and the part which the original judgment accepted part of the plaintiffs' claims against the defendant 2 and the remaining claims against the defendants is just and without merit, and the defendants' appeals are dismissed. As stated above, since the land of this case was changed due to the substitute land determination, the lot number of the land of this case was changed due to the substitute land determination, the indication of this case in the original judgment is corrected, and the costs of the lawsuit are assessed against the defendants
Judge Han Man-do (Presiding Judge)