The Defendant-Counterclaim Plaintiff’s succeeding intervenor (Counterclaim Defendant) performed the procedures for consent to the building report to extend the building No. 2 within the scope of 85 square meters (1st 69.44 square meters, 2nd 15.12 square meters) among the real estate listed in the attached Table to the Plaintiff (Counterclaim Defendant).

2. The remaining appeal by the Plaintiff (Counterclaim Defendant) is dismissed.

3. The total costs of the lawsuit shall be five minutes, and one of them shall be borne by the plaintiff (Counterclaim defendant) and the remainder by the defendant (Counterclaim plaintiff).

The principal lawsuit: The Defendant (Counterclaim Plaintiff)’s succeeding intervenor (hereinafter “Defendant”) shall perform the procedure for consent with respect to the building report for the extension of the area of 85 square meters within the building among the real estate listed in the separate sheet to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”).

Preliminary counterclaim: The plaintiff shall implement the consent procedure with respect to the application for a building permit to extend the floor area of 4.31 square meters and the area of 9.78 square meters in total of 54.09 square meters in a building among the real estate listed in the attached list in the attached list to the defendant.

2. Purport of appeal

The same shall apply to the order.

The court of first instance rendered a judgment dismissing both the principal lawsuit and the preliminary counterclaim against the Plaintiff and the Defendant A, who withdrawn from the Plaintiff, to the principal lawsuit and the preliminary counterclaim as stated in each claim, and only the Plaintiff appealed against the Plaintiff, the scope of the trial for the first instance is limited to the claims of the principal lawsuit.

2. Determination as to the cause of action

(a) Facts of recognition;

The following facts are not disputed between the parties, or acknowledged in light of the whole purport of the arguments in each of the statements in Gap evidence 1-1, 2, 2-2, 3-1, 3-2, Gap evidence 4, 7-1, 7-2, 1-1, 1-2, 1-2, and 2.

(1) On July 13, 200, the plaintiff and the non-party 1 (hereinafter "the plaintiff") purchased the building No. 2 from the non-party 2, the non-party 3, and the non-party 4 (hereinafter "the non-party 1") at the ratio of the plaintiff 9/10 shares and the non-party 1/10 shares of the real estate indicated in the attached list (hereinafter "the building in this case") which is the building on the ground of the non-party 2, the non-party 3, and the non-party 4 purchased the building No. 2 from the non-party 2, the non-party 3, and the non-party 4 at the non-party 4's own share of 9/10 shares, and the non-party 1 purchased the building No. 2 from the defendant Gap (hereinafter "the non-party 1") who withdrawn from May 27, 2005 at the same time as the building No. 647.2 square meters and the building No. 586, May 386, 2005.

(2) The instant building is divided into three underground floors and ten floors above, which are located in two lots of 647.2m2 m2, such as the said Seocho-dong (number omitted) and the said 647m2m2.

(3) On June 16, 2003, the Plaintiff and the Plaintiff agreed to extend the building No. 2 and No. 1 to 85 square meters each of the instant building. However, the instant building is used as an aggregate building, and the Plaintiff’s side and the Plaintiff’s respective land of the said two lots are used as one site, and thus the other party’s consent is necessary to file an application for a building permit or report the building. As such, the agreement is reached between the Plaintiff and the competent authority on the application for the building permit or report for the said extension and the agreement between the Plaintiff’s joint contractor and Han F&C Co., Ltd. on the 16th of the same month to extend the building No. 1 and No. 85 square meters each of the instant building. 5th of the instant building, the agreement is concluded with the Plaintiff’s 2nd of construction construction, and the Plaintiff’s construction report and the Plaintiff’s respective land No. 1 and No. 5th of the instant building should be prepared with the agreement to extend the building No. 1 to 35th of the instant building.

(4) Afterwards, Gap extended the building No. A among the instant building with the Plaintiff’s consent in accordance with the design drawing, but rejected the Plaintiff’s consent to the building report for extension in accordance with the Plaintiff’s above design drawing, and the Defendant’s successor to the status of the instant agreement also rejected.

B. Determination

According to the above facts, the defendant who succeeded to the status under the agreement of this case from Gap along with the title of the building of this case and the site thereof, is obligated to consent to the plaintiff to file a building report for extending the building of this case within the scope of 85 square meters (69.44 square meters for one story, 15.12 square meters for two stories) among the building of this case, unless there are special circumstances.

The Plaintiff sought consent from the Defendant to file a building report for the extension of 85 square meters without limiting the scope of the area of the first and second floors. However, according to the above facts, the Defendant’s obligation under the instant agreement is limited to a building report for extension within the scope of 85 square meters (69.44 square meters for the first floor, 2nd floor, 15.12 square meters) pursuant to the design drawings attached to the instant agreement. Furthermore, there is no evidence to prove that the Defendant, without any restriction, had a duty to consent to a building report for the extension of 85 square meters on the part of the Plaintiff, without any restriction, is not acceptable.

3. Judgment on the defendant's defense and argument

A. In the event that the Plaintiff’s extension is made in accordance with the design drawings attached to the instant agreement, the Plaintiff’s floor area (69.44m2) exceeds the remaining building-to-land ratio on the part of the Plaintiff, resulting in a decrease in the remaining building-to-land ratio on the part of the Defendant. However, the Plaintiff, despite being well aware of such circumstances, knew of such circumstances, and deceiving the Defendant without notifying the Defendant thereof, and the Defendant entered into the instant agreement without knowing the above circumstances due to mistake. Thus, the instant agreement is invalid, or the Defendant’s reply seeking revocation on the ground of fraud or mistake, which affected the conclusion that the agreement became retroactively null and void.

Therefore, there is no evidence to acknowledge that the plaintiff deceptions Gap as to the remaining building-to-land ratio of the building of this case when entering into the agreement of this case, and according to the above facts, the agreement of this case was specified not only the total floor area of the building of this case to be extended, but also the remaining building-to-land ratio of the building of this case due to the extension because the number of floors to be extended and areas by each floor are specified by the attachment of design drawings. Thus, even if there were circumstances where the remaining building-to-land ratio of the building of this case cannot be maintained equally as to the remaining building-to-land ratio of the building of this case among the buildings of this case as a result of the above extension, it shall not be deemed as an error in the terms of the contract, and the defendant's assertion is merely unaware of the effects of the legal act done by himself, and thus, it shall not be deemed as null and void or cancelled the agreement of this case. Accordingly,

B. In addition, the Defendant alleged that the part of the instant building Nos. 3 and 4, which had already been extended at the time of the instant agreement, would have been extended to 85 square meters after the Plaintiff removed it, and thus, Party A agreed to consent thereto. However, the Plaintiff asserted that the Plaintiff did not have an obligation to consent thereto since the Plaintiff intended to extend the area of 85 square meters without removing the existing extension portion. As such, each of the provisions of Articles 3 and 4, which correspond thereto, cannot be believed in light of the circumstances that the part to be extended by the attachment of the design drawing at the time of the instant agreement was specified, and there is no other evidence to acknowledge it. Therefore, the Defendant’s above assertion is without merit.

C. The defendant again seeks to transfer landscaping created in the part of sub-paragraph (b) of the building of this case to joint use without the defendant's consent while the plaintiff extended the building of this case, and thus, it is not possible to agree to the above extension. However, there is no evidence to acknowledge this, the defendant's assertion is without merit.

D. Finally, the Defendant asserts to the effect that, even though the building-to-land ratio of the instant building was calculated erroneously on the aggregate building management ledger which was based on the premise of the design office at the time of the instant agreement, the design drawings attached to the instant agreement were prepared, and thus, it is impossible for the Plaintiff to extend the building according to the terms and conditions stipulated in the instant agreement to the effect that it is impossible for the Plaintiff to do so due to the shortage of the remaining building-to-land ratio, and therefore, the Defendant’

However, since the building-to-land ratio of the building of this case is calculated erroneously on the aggregate building management ledger, it is possible for the plaintiff to implement extension under the agreement of this case according to the result of the administrative agency's disposition, this does not interfere with the defendant's performance of obligations under the agreement of this case. Thus, the defendant's above assertion cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is revoked, order the defendant to implement the procedure for consent within the extent of acceptance as above, and the remaining appeal of the plaintiff is dismissed. It is so decided as per Disposition.

[Attachment List omitted]

Judges Cho Jong-ok (Presiding Judge) (Presiding Judge) Kim Jae-sik