[건물철거등청구사건][고집1980민(2),38]
Legal superficies and registration of unregistered building owners;
Even in cases where both a building and a site belong to the ownership of the same person at the time of the purchase of a building, if a building purchaser transfers the building site to a third party without completing the registration of ownership transfer concerning the building and thus the registration of ownership transfer is filed, the building purchaser may not claim legal superficies according to customary law against the third party who acquired the building site.
Article 366 of the Civil Act
【Court Decision 65Da2530 delivered on April 26, 1966, 65Da2530 delivered on April 26, 196 (Supreme Court Decision 1373, Decision 366(10)368 of the Civil Act)
Plaintiff
Defendant 1 and 11 others
Busan District Court (78Gahap378)
(1) The part on Defendant (1) through (9) in the original judgment shall be modified as follows:
(2) As to the Plaintiff:
(가) 피고 (1) 내지 (9)는 부산 중구 동광동 5가 (지번 1 생략) 대 22평 중 19평 8홉 및 같은동 5가 3의 (지번 2 생략) 대 29평 3홉중 7평 양필지상에 건립된 연와조 스라브가 3계건 주택 1동 별지도면의 (ㄱ), (ㄴ), (ㄷ), (ㄹ), (ㅁ), (ㅂ), (ㅈ), (ㅇ), (ㄱ)의 각 점을 순차연결한 1층 26평 8홉(ㅊ), (ㅋ), (ㅁ), (ㅇ), (ㅅ¹), (ㅂ¹), (ㅁ¹), (ㄹ¹), (ㄷ¹), (ㄴ¹), (ㅊ)의 각 점을 순차연결한 2층 28평 9홉 (ㅈ¹), (ㅊ¹), (ㅋ¹), (ㅌ¹), (ㅍ¹), (ㅎ¹), (ㅈ¹)의 각 점을 순차연결한 3층 별지도면표시 (사)부분 7평 1홉과 (ㄴ²), (ㄷ²), (ㄹ²), (ㅁ²), (ㄴ²) 각 점을 순차연결한 3층 별지도면표시 (아)부분 5홉 합계 건평 63평 3홉을 철거하고 그 건물 부지 26평 8홉을 인도하고
(B) From July 1, 1978 to July 1, 1978, Defendant 2, 3, 4, and 5, based on the annual rate of KRW 122,047,00,000 to the completion of the delivery of the above site, Defendant 6, 7, and 8, based on the annual rate of KRW 273,360,000, and KRW 81,364,00,000,000 per annum from July 1, 1978 to the completion of the delivery of the above site, and KRW 40,682,00 per annum from July 1, 1978 to the completion of the delivery of the above site.
(3) The plaintiff's remaining claims and all appeals filed by the defendant 9, 10, and 11 are dismissed.
(4) The total cost of the lawsuit between the Plaintiff and the Defendant (1) through (9) shall be borne by the said Defendants, and the cost of appeal by the Defendants 9, 10, and 11 shall be borne by the said Defendants.
(5) The above part of the payment of the money can be provisionally executed.
피고 (1) 내지 (9)에 대하여는 주문 제2의 (가)항과 같은 판결(당심에서 청구취지를 확장하다) 및 원고에게 피고 1은 돈 410,040원 및 1978. 5. 20.부터 위 대지인도완료일까지 평당 연 돈 4,554원의 비율에 의한 피고 2, 3, 4, 5, 12는 각 돈 273,360원 및 1978. 5. 20.부터 위 대지인도완료일까지 각 평당 연 돈 3,036원의 비율에 의한, 피고 6, 7, 8은 각 돈 136,680원 및 1978. 5. 20.부터 위 대지인도완료일까지 각 평당 연 돈 1,518원의 비율에 의한 돈을 각 지급하라는 판결을, 피고 (10) 내지 (12)에 대하여는 원고에게 피고 9는 별지도면표시의 (ㄱ), (ㄴ), (ㄷ), (ㄹ), (ㅅ), (ㅇ), (ㄱ)의 각 점을 순차연결한 1층 (가)부분 13평 2홉에서, 피고 10은 같은 도면표시의 (ㅇ), (ㅅ), (ㄹ), (ㅁ), (ㅂ), (ㅈ), (ㅇ)의 각 점을 순차연결한 1층 (나)부분 13평 6홉에서, 피고 11은 같은 도면표시의 (ㄴ¹), (ㄱ¹), (ㅂ¹), (ㅁ¹), (ㄹ¹), (ㄷ¹), (ㄴ¹)의 각 점을 순차연결한 2층 (바) 16평 1홉에서 각 퇴거하라.
Costs of lawsuit shall be jointly and severally borne by the Defendants, and a declaration of provisional execution
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.
1. Determination as to Defendant (1) through (9)
(a) Removal of buildings and request for delivery of sites;
If Gap evidence No. 1-1, Gap evidence No. 3 (not less than a copy of the register), Gap evidence No. 4 (Appraisal Map) without dispute, were collected from the result of the survey appraisal conducted by the non-party No. 1 (E. 1 February 1, 1979) and the whole purport of the pleading conducted by the non-party No. 1, the non-party No. 1, and the non-party No. 2, the non-party No. 1, and the non-party No. 2, the non-party No. 9, the non-party No. 1, the non-party No. 2, the non-party No. 9, the non-party No. 9, the non-party No. 2, the non-party No. 9, the non-party No. 9, the non-party No. 2, the non-party No. 9, the non-party No. 9, the non-party No. 9, the non-party No. 1, the non-party No. 2, the non-party No. 1, the second.
The Defendants’ legal representative (1) The non-party Busan City (actually, the non-party 4) obtained the consent of the owner of the site at the time of the construction of the above building. Thus, the above Defendants asserted that the superficies occurred at this time, and that the above Defendants succeeded to it. Therefore, it cannot be said that the superficies occurred immediately upon the consent of the owner of the site at the time of the construction of the building, and there is no evidence to prove that the owner of the building at the time of the construction of the above building has established the superficies for
(2) The above building is owned by the non-party 4 who initially purchased a house building loan from the City of Busan and newly constructed by the non-party 4 (Provided, That the registration of preservation of ownership was made in the name of Busan for the purpose of securing the above loan). The non-party 4 acquired the ownership of the building site prior to the sale of the building, and the above building and site were owned by the non-party 4, and the non-party 1 purchased the above building on May 7, 1963 without an agreement to remove the building. Thus, it is proved that the non-party 1 purchased the above building on May 7, 1963 without any custom to remove the building. Thus, even if it is assumed that the building and site were owned by the non-party 4 at the time of the purchase of the above building, even if the non-party 4 were owned by the non-party 4, the above non-party 1 was not entitled to the registration of ownership transfer of the building after the purchase of the building site, and it cannot be asserted as the above legal superficies of the non-party 16.
(3) Nonparty 5, the husband of the Plaintiff, was aware of the fact that at the time, Nonparty 5 was working for Nonparty 6, the mortgagee of the right to collateral security on the site of this case, was transferred to the Korea Assets Management Corporation at a low price in the name of the Plaintiff for the purpose of speculation, and acquired the ownership of this case. The above Defendants refused to pay rent, and the above Defendants’ refusal to remove the above building at a low price in the name of the Plaintiff, which was established as part of the construction policy of the city of Busan, could not be allowed as anti-social acts or abuse of ownership. However, the testimony by Nonparty 7 was insufficient to recognize that Nonparty 5 had received the above site in the name of the Plaintiff for the purpose of speculation by abusing the position of the bank center at the time of purchase, and there was no other evidence to recognize otherwise. The Plaintiff cannot be said to have concluded that there was no objection to the claim for removal of the building or abuse of rights due to the abuse of rights due to the act of abuse of rights.
(b) Claim for unjust enrichment and damages from a clinical fee;
In light of the above facts, if the court below's findings of the appraisal of rent and the purport of oral argument were collected from Non-party 8's 26th 8th n.e., the rent from May 20, 1973 to June 30, 1978 for 26th 8th n.e., the rent is 2,186,80 won as stated in the attached Table, and the annual rent as of June 1978 is 651,240 won, and the result of the appraisal of rent by Non-party 9 of the court below did not interfere with the above recognition, otherwise, the above defendants are liable to compensate the plaintiff for damages from the next day of May 20, 1973 to the next day of June 17, 1978, and the above rent is 2,186,880 won to the next day of June 197, 197.
The Defendants’ legal representative asserted that the statute of limitations expired from May 20, 1973 to February 10, 1975 out of the said recognized money. However, the statute of limitations for a claim for return of unjust enrichment is ten years, and the said statute of limitations is the same as the said recognition that the Plaintiff sought money for the said period as unjust enrichment. Therefore, the said defense is groundless.
Furthermore, according to the evidence Nos. 1-2, 3 (Certified Copy of Copy) 1-2, 3 (No dispute over the establishment of the above building, Defendant 1-6, Defendant 2, Defendant 3, 4, 5, and 12 can recognize the fact that the ratio of shares in the above building was 1/16, Defendant 6, 7, and 8, respectively. Defendant 13 is 410,040 won, and 12,047 won per annum from July 1, 1978 to the completion date of delivery of the site of this case [4,545 won x 24,300 won x 3/16), 26.8, 4, 5 x 12 x 360 won per annum of the above building site x 36.86 won per annum of the above case] x 16.36 /68 186 /67 1978 of the above site of this case].
2. Determination as to Defendant (10) to 12
According to the above verification and appraisal as recognized earlier, Defendant 9 has the obligation to leave from each of the above parts of the above building, Defendant 10, Defendant 11, and Defendant 11, respectively, for possession and use of the same part of the claim, and there is no counter-proof. Therefore, in this case where the above Defendants have no assertion or proof as to the right of possession of the above part of the building, the above Defendants are obliged to leave the building from each of their possession.
3. Conclusion
Therefore, the plaintiffs' claims against the defendant (1) through (9) are justified within the scope of the above recognition, and they are dismissed as the remaining claims are without merit, and the claims against the defendant (10) through (12) are all reasonable, and they are accepted as such.
Therefore, since the part of the original judgment against Defendant (1) through (9) is deemed to be unfair on the other hand, it is modified, and since the part against Defendant (10) through (12) is deemed to be justifiable on the other hand, the above Defendants’ appeal shall be dismissed, and as to the bearing of litigation costs, Articles 96, 95, 89, 92, and 93 of the Civil Procedure Act and Article 199 of the Provisional Execution Act shall apply to the pronouncement of provisional execution.
Judges fixed ticket (Presiding Judge) Mobile Engines