Attorney X-hwan et al.

Representative City Mayor Dognam

Y Attorney Park Jong-soo, Counsel for the plaintiff-appellant

2. Litigation costs shall be borne by each person;

A. On September 19, 190, the Defendant purchased part of the land among the land lots of 00 Busan Metropolitan City which was created by the Korea National Housing Corporation and constructed a new apartment-type factory on the ground of 00-0, 000, Seodong-gu, Busan Metropolitan City (hereinafter “the apartment-type factory in this case”). On April 13, 1991, the Defendant sold to non-party B the building Nos. 2. The building Nos. 1 and 2 among the real estate indications (Omission) among the attached Table Nos. 1 and 2, the sale price of the apartment-type factory is to be settled after confirmation of the size, price, etc. of the site of the above apartment-type factory.

B. Meanwhile, the registration relation with the apartment-type factory of this case was not registered due to the reason that the land subdivision of the Korea National Housing Corporation was not completed. The defendant made a registration of preservation of ownership only for the apartment-type factory building of this case on August 27, 1992, and made a registration of ownership transfer for each section of exclusive ownership to several buyers, including B, etc. on September 4 of the same year. After completion of land rearrangement, the area of the site of the apartment-type factory of this case was determined to be 1648 square meters. Accordingly, the defendant paid 60,767,000 won to the Korea National Housing Corporation as the settlement amount for the above site and paid 60,767,000 won additionally with the settlement amount for the above site to the Korea National Housing Corporation, and received the settlement amount from several buyers on December 30, 1994, and completed the registration of ownership transfer as to each site of this case, but the part of exclusive ownership was not paid as to the share of ownership transfer.

D. Among them, the section for exclusive use of the instant building was based on the successful bid based on the voluntary auction on November 30, 1995, and the registration of ownership transfer was made in D on the same ground as December 30, 1999, and the registration of ownership transfer was made in the Plaintiff’s future on the ground of sale as of November 15, 2006, and the share of the site for the section for exclusive use of the instant building is equal to the share of the site in [Attachment 1 and 2] among the shares of each real estate listed in [Attachment 1 and 2 (Omission].

E. While a right to a site registration was not made with respect to the share of the site of the building of the instant section for exclusive use, the garnishee shall, upon B’s motion by the creditors, be the defendant, and B shall make a provisional attachment as to the right to a claim for ownership transfer registration as to the share of the building of the instant section

(1) The Korea Credit Guarantee Fund has made a provisional attachment decision of this case (hereinafter referred to as the "Korea Credit Guarantee Fund") on March 15, 1994, (2) on February 21, 1995 in Korea Exchange Bank, and (3) on November 6, 1996 in Korea Exchange Bank.

[Ground of recognition] In the absence of dispute, Gap evidence 1-1, 2-2, Gap evidence 2-1, 2-1, 3-2, Gap evidence 4-6, Eul evidence 1-5, Eul evidence 6-1 through 3, Eul evidence 7-1-4, and the purport of the whole pleadings

2. Determination

A. In a case where a third party is awarded a right to use a site under Article 2 subparag. 6 of the Act on the Ownership and Management of Aggregate Buildings as a result of the auction procedure for a section of exclusive ownership without a registration of transfer of ownership or registration of change of a site ownership concerning a portion of exclusive ownership after the registration of change of ownership concerning a portion of exclusive ownership was completed after the registration of change of ownership concerning a portion of exclusive ownership was made to the buyer of a building, the successful bidder shall acquire the right to use the site under Article 2 subparag. 6 of the Act on the Ownership and Management of Aggregate Buildings, and the same applies in a case where the buyer fully pays the price for the sale to the buyer and the buyer, as a result of the acquisition of the right to use the site, the successful bidder may seek against the buyer and the buyer to complete the procedure for registration of change of a site ownership from the buyer through the buyer or to complete the procedure for registration of change of a site ownership against the buyer (see, e.g., Supreme Court Decision 200Da5614, Sept. 24, 2006).

B. In light of the above legal principles, the Plaintiff, as the owner of the building of the instant exclusive ownership, acquired the right to use the site under Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings. As the effect of acquiring the right to use the site, the Plaintiff can seek implementation of the procedure for change of site ownership indication registration to the Defendant, who is the seller of the building of the instant exclusive ownership, and pursuant to Article 57-3 of the amended Registration of Real Estate Act, enforced June 1, 2006, the Plaintiff, who is the final owner of the building of the instant exclusive ownership, may seek implementation of the procedure for registration of ownership transfer concerning the right to use the site of this case to the Defendant, who is the direct purchaser without the need for registration under the title of the intermediary. However, as seen earlier, when the Plaintiff seeks the Defendant to implement the procedure for registration of ownership transfer, the Defendant may simultaneously make a payment of KRW 6,761,460 out of the sale price to the Defendant, and thus, the Defendant is obligated to receive KRW 6,761,460 each of the building of this case.

3. The defendant's assertion and judgment

A. The defendant, around August 192, prepared a covenant that the above factory building, which is an aggregate building, may be separately disposed of with the land of this case for the purpose of applying for the registration of the apartment-type factory of this case, and the separate disposition may be revoked according to the circumstances, and submitted to the registry. Even if the plaintiff has the right to use the site of this case and the right to claim the registration of change of site indication regarding the share in the site of this case, the defendant is notified of the provisional attachment decision of this case as to the share in the site of this case, so the provisional attachment of

B. According to Article 20 of the Act on the Ownership and Management of Aggregate Buildings, a sectional owner's right to use site shall follow the disposal of his section of exclusive ownership (Paragraph 1), and a sectional owner shall not dispose of his right to use site separately from his section of exclusive ownership unless otherwise stipulated by the regulations or notarial deeds (Paragraph 2 and Paragraph 4). The prohibition of separate disposal shall not be asserted against a third party who has acquired real rights in good faith unless it is registered (Paragraph 3). The purport of the above provision is to prevent the separation of section of exclusive ownership and the right to use site from occurring without a right to use site by preventing the occurrence of sectional ownership without a right to use site by preventing the separation of section of exclusive ownership and the right to use site from occurring (see, e.g., Supreme Court en banc Decision 98Da45652, 469, Nov. 16, 200). With respect to whether there exists a provision asserted by the defendant and the purport thereof, the right to use site of exclusive ownership cannot be separated from the obligee's right to use of the site.

C. Therefore, the defendant's above assertion, which is premised on the validity of the provisional seizure decision of this case, is without merit.

4. Conclusion

Thus, the plaintiff's claim of this case is justified, and this is accepted.