2. The plaintiff's preliminary claim and the plaintiff's claim extended in the trial for the removal of the building added at the trial are all dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

The Defendant, as the Plaintiff

가. (1) 주위적으로, 서울 강북구 ○○동 (지번 생략) 지상, 별지 제1도면 표시 41, 42, 20, 43, 41의 각 점을 차례로 연결한 선내 ① 부분 판넬조 철판지붕 1층 세면실 2.4㎡를, 같은 도면 표시 21, 22, 23, 44, 21의 각 점을 차례로 연결한 선내 ② 부분 판넬조 철판지붕 1층 작업실 6.1㎡를, 같은 도면 표시 45, 46, 47, 48, 45의 각 점을 차례로 연결한 선내 ③ 부분 판넬조 판넬지붕 1층 도색실 30.8㎡를, 같은 도면 표시 49, 52, 53, 51, 49의 각 점을 차례로 연결한 선내 ④ 부분 세멘트벽돌조 철판지붕 1층 창고 및 화장실 11.3㎡를, 같은 도면 표시 54, 49, 51, 53, 7, 26, 27, 59, 11, 12, 55, 56, 57, 58, 54의 각 점을 차례로 연결한 선내 ⑥ 부분 세멘트벽돌조 철판지붕 1층 작업실 199.8㎡를, 같은 도면 표시 56, 55, 12, 29, 57, 56의 각 점을 차례로 연결한 선내 ⑨ 부분 판넬조 판넬지붕 1층 사무실 23.9㎡를, 같은 도면 표시 66, 61, 33, 34, 62, 63, 64, 65, 30, 66의 각 점을 차례로 연결한 선내 ⑪ 부분 경량철골조 철판지붕 1층 작업실 101.9㎡를, 같은 도면 표시 67, 33, 61, 66, 67의 각 점을 차례로 연결한 선내 ⑬ 부분 세멘트벽돌조 철판지붕 1층 창고 1.4㎡를, 별지 제2도면 표시 48, 18, 19, 46, 49, 48의 각 점을 차례로 연결한 선내 ② 부분 판넬조 판넬지붕 2층 휴게실 15.6㎡를, 같은 도면 표시 19, 20, 50, 46, 19의 각 점을 차례로 연결한 선내 ③ 부분 판넬조 판넬지붕 2층 사무실 20.4㎡를, 같은 도면 표시 21, 22, 23, 51, 50, 20, 21의 각 점을 차례로 연결한 선내 ④ 부분 판넬조 함석지붕 2층 창고 12.4㎡를, 같은 도면 표시 23, 24, 52, 51, 23의 각 점을 차례로 연결한 선내 ⑤ 부분 쇠파이프조 함석지붕 2층 도색창고 24.3㎡를, 같은 도면 표시 53, 54, 73, 75, 60, 55, 38, 56, 57, 58, 53의 각 점을 차례로 연결한 선내 ⑥ 부분 쇠파이프조 천막 및 썬라이프지붕 2층 작업실 112.4㎡를, 같은 도면 표시 59, 58, 57, 56, 40, 41, 42, 43, 59의 각 점을 차례로 연결한 선내 ⑦ 부분 콘테이너박스 2층 사무실 21.4㎡를, 같은 도면 표시 60, 61, 37, 55, 60의 각 점을 차례로 연결한 선내 ⑧ 부분 쇠파이프조 천막지붕 2층 작업실 34.6㎡를, 같은 도면 표시 62, 63, 64, 65, 62의 각 점을 차례로 연결한 선내 ⑨ 부분 판넬조 판넬지붕 2층 도색실 30.8㎡를, 같은 도면 표시 66, 65, 64, 69, 7, 30, 31, 70, 11, 12, 71, 68, 36, 37, 61, 66의 각 점을 차례로 연결한 선내 ⑩ 부분 경량철골조 함석지붕 2층 작업실 212.2㎡를, 같은 도면 표시 49, 46, 50, 51, 52, 24, 25, 26, 27, 72, 73, 54, 53, 58, 59, 43, 44, 74, 15, 49의 각 점을 차례로 연결한 선내 ⑬ 부분 철판바닥 2층 통로 104㎡를, 같은 도면 표시 56, 38, 39, 40, 56의 각 점을 차례로 연결한 선내 ⑮ 부분 철판바닥 2층 통로 4.0㎡를, 같은 도면 표시 75, 66, 61, 60, 75의 각 점을 차례로 연결한 선내 부분 철판바닥 2층 통로 15.2㎡를, 같은 도면 표시 27, 76, 6, 69, 64, 63, 62, 65, 66, 27의 각 점을 차례로 연결한 선내 부분 철판바닥 2층 통로 35.4㎡를, 같은 도면 표시 34, 35, 36, 68, 33, 34의 각 점을 차례로 연결한 선내 부분 철판바닥 2층 통로 29.2㎡를 각 철거하고,

(2) 예비적으로, 서울 강북구 ○○동 (지번 생략) 지상, 별지 제1도면 표시 41, 42, 20, 43, 41의 각 점을 차례로 연결한 선내 ① 부분 판넬조 철판지붕 1층 세면실 2.4㎡를, 같은 도면 표시 21, 22, 23, 44, 21의 각 점을 차례로 연결한 선내 ② 부분 판넬조 철판지붕 1층 작업실 6.1㎡를, 같은 도면 표시 45, 46, 47, 48, 45의 각 점을 차례로 연결한 선내 ③ 부분 판넬조 판넬지붕 1층 도색실 30.8㎡를, 같은 도면 표시 49, 52, 53, 51, 49의 각 점을 차례로 연결한 선내 ④ 부분 세멘트벽돌조 철판지붕 1층 창고 및 화장실 11.3㎡를, 같은 도면 표시 52, 25, 50, 53, 52의 각 점을 차례로 연결한 선내 ⑤ 부분 세멘트벽돌조 철판지붕 1층 창고 및 화장실 3.6㎡를, 같은 도면 표시 56, 55, 12, 29, 57, 56의 각 점을 차례로 연결한 선내 ⑨ 부분 판넬조 판넬지붕 1층 사무실 23.9㎡를, 같은 도면 표시 66, 61, 33, 34, 62, 63, 64, 65, 30, 66의 각 점을 차례로 연결한 선내 ⑪ 부분 경량철골조 철판지붕 1층 작업실 101.9㎡를, 같은 도면 표시 67, 33, 61, 66, 67의 각 점을 차례로 연결한 선내 ⑬ 부분 세멘트벽돌조 철판지붕 1층 창고 1.4㎡를, 별지 제2도면 표시 48, 18, 19, 46, 49, 48의 각 점을 차례로 연결한 선내 ② 부분 판넬조 판넬지붕 2층 휴게실 15.6㎡를, 같은 도면 표시 19, 20, 50, 46, 19의 각 점을 차례로 연결한 선내 ③ 부분 판넬조 판넬지붕 2층 사무실 20.4㎡를, 같은 도면 표시 21, 22, 23, 51, 50, 20, 21의 각 점을 차례로 연결한 선내 ④ 부분 판넬조 함석지붕 2층 창고 12.4㎡를, 같은 도면 표시 23, 24, 52, 51, 23의 각 점을 차례로 연결한 선내 ⑤ 부분 쇠파이프조 함석지붕 2층 도색창고 24.3㎡를, 같은 도면 표시 53, 54, 73, 75, 60, 55, 38, 56, 57, 58, 53의 각 점을 차례로 연결한 선내 ⑥ 부분 쇠파이프조 천막 및 썬라이프지붕 2층 작업실 112.4㎡를, 같은 도면 표시 59, 58, 57, 56, 40, 41, 42, 43, 59의 각 점을 차례로 연결한 선내 ⑦ 부분 콘테이너박스 2층 사무실 21.4㎡를, 같은 도면 표시 60, 61, 37, 55, 60의 각 점을 차례로 연결한 선내 ⑧ 부분 쇠파이프조 천막지붕 2층 작업실 34.6㎡를, 같은 도면 표시 62, 63, 64, 65, 62의 각 점을 차례로 연결한 선내 ⑨ 부분 판넬조 판넬지붕 2층 도색실 30.8㎡를, 같은 도면 표시 66, 65, 64, 69, 7, 30, 31, 70, 11, 12, 71, 68, 36, 37, 61, 66의 각 점을 차례로 연결한 선내 ⑩ 부분 경량철골조 함석지붕 2층 작업실 212.2㎡를, 같은 도면 표시 49, 46, 50, 51, 52, 24, 25, 26, 27, 72, 73, 54, 53, 58, 59, 43, 44, 74, 15, 49의 각 점을 차례로 연결한 선내 ⑬ 부분 철판바닥 2층 통로 104㎡를, 같은 도면 표시 56, 38, 39, 40, 56의 각 점을 차례로 연결한 선내 ⑮ 부분 철판바닥 2층 통로 4㎡를, 같은 도면 표시 75, 66, 61, 60, 75의 각 점을 차례로 연결한 선내 부분 철판바닥 2층 통로 15.2㎡를, 같은 도면 표시 27, 76, 6, 69, 64, 63, 62, 65, 66, 27의 각 점을 차례로 연결한 선내 부분 철판바닥 2층 통로 35.4㎡를, 같은 도면 표시 34, 35, 36, 68, 33, 34의 각 점을 차례로 연결한 선내 부분 철판바닥 2층 통로 29.2㎡를 각 철거하고,

(b) Of the size of 1,067 square meters in annexed sheet 67, 33, 34, 35, 36, 37, 38, 39, 40, 16, 17, 18, 19, 42, 20, 21, 22, 23, 68, 52, 53, 57, 26, 27, 27, 59, 11, 12, 29, 13, 72, 30, 30, 66, and 67 in annexed sheet 1,07, Gangnam-gu, Seoul Metropolitan Government;

C. From November 1, 2007 to the full payment date, the Plaintiff paid 147,964,120 won and the amount at the rate of 20% per annum (the Plaintiff added the preliminary claim for the part of the claim for removal of a building at the trial, reduced the claim for removal of the building, delivery of the land, and claim for restitution of unjust enrichment, respectively, and added damages for delay to the part of the restoration cost and the claim for restitution of unjust enrichment).

2. Purport of appeal

The part of the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation shall be dismissed.

The following facts are not disputed between the parties, or comprehensively taking account of Gap evidence 1, Eul evidence 2-1 through 3, Eul evidence 4-1 through 5, Gap evidence 5, Eul evidence 8, Gap evidence 9-1 through 4, Gap evidence 10-2, Gap evidence 16 through 19, Eul evidence 2-1 through 2-10, Eul evidence 3-2, Eul evidence 4, Eul evidence 6, Eul evidence 7-1 through 4, Eul evidence 8-1 through 8-3, Eul evidence 9-1 through 4, Eul evidence 10-1 through 18, Eul evidence 10-1 through 18, the result of the on-site inspection by the court of first instance, and the purport of non-party 6's survey and appraisal by the court of first instance.

A. On October 22, 1986, the Plaintiff received testamentary gifts of ○○○ Dong (number omitted) and 1,067 square meters (hereinafter “instant land”) in Gangseo-gu Seoul Metropolitan Government (hereinafter “instant land”) and completed the registration of ownership transfer in the name of the Plaintiff on March 14, 1987.

B. Around November 16, 1998, Nonparty 1, the Plaintiff, purchased from Nonparty 2 a cement brick structure, steel plate, 140.9 square meters of 140.99 square meters of 1st floor, and 356.63 square meters of 1st floor on the instant land (hereinafter “previous building”) and completed the registration of ownership transfer in his name on the 19th day of the same month.

C. On October 31, 1983, Nonparty 3 leased some of the instant land and the previous buildings on its ground from the Plaintiff for a lease deposit of KRW 11 million, monthly rent of KRW 1 million, and the lease term of KRW 1 million, and operated the ○ Automobile Industrial Complex, an individual company. Nonparty 4, around January 1984, succeeded to the above industrial intention from Nonparty 3, and succeeded to the status of the tenant under the above lease agreement between the Plaintiff and Nonparty 3 on the instant land and the previous buildings, and maintained the lease relationship by means of renewal of the lease agreement between the Plaintiff and the Plaintiff.

D. On November 12, 2001, Nonparty 4 established a defendant company with Nonparty 5 and converted the above industrial company into a private company.

E. On November 30, 2001, the Plaintiff entered into a lease agreement with the Defendant on the condition that the land and previous buildings occupied by the Defendant in the instant land are KRW 25 million, monthly rent of KRW 2.2 million, the last day of each month, the lease period from November 30, 2001, and one year from November 30, 2001, and thereafter, the said lease agreement was renewed by extending the lease period each year.

F. Meanwhile, from March 200 to February 2004, the Defendant newly constructed the 16, 17, 18, 19, and 16 attached drawings among the previous buildings which carried KRW 300 million worth on the instant land (hereinafter “the instant land section”) on the 134.8 square meters in the work site of the 34.8 square meters in order, which connected each point of (i) part of the attached drawings 3, 16, 17, 18, 19, 16, among the previous buildings which carried KRW 30 million worth, and (ii) on the 15th floor of the instant building; (iii) on the 7th floor of the instant land; (iv) on the 15th floor of the instant land, the lower court revoked the confession of the 15th floor of the previous building on the 14th floor through the appraisal date; and (iv) on the 20th floor of the first instance court on the 20th floor of the instant land.

G. After the building of this case was newly constructed on August 31, 2004, the Plaintiff entered into a lease agreement with the Defendant again with regard to the land occupied by the Defendant, and the land owned by the instant branch, with the terms of KRW 35 million, KRW 35 million, monthly rent of KRW 3.5 million, the last day of each month, the last day of August 31, 2004, and the term of lease from August 31, 2004 to August 31, 2005 (hereinafter “instant lease agreement”).

H. On August 26, 2005, the Plaintiff notified the Defendant of his/her intention to order the land and building that he/she leased to restore to the original state immediately after the expiration of the lease term on August 31, 2005 and notified the Defendant of the same content again on the 29th of the same month.

I. Even after September 1, 2005, the Defendant paid the Plaintiff a monthly rent of KRW 3.5 million under the instant lease agreement for a period of 20 months from April 30, 2007 to April 30, 2007, and paid the Plaintiff a total of KRW 70 million. The rent was not paid after May 1, 2007.

2. Determination

A. Determination on the removal of buildings and requests for delivery of land

(1) As to the primary claim for removal of a building and the claim for delivery of the land

(A) Determination on the cause of the claim

According to the above facts, the building of this case is a separate independent building with different materials and structure from the part of this case's floor, and the lease contract of this case was terminated on August 31, 2005. Thus, the contract of this case was terminated on August 31, 2005. Thus, the defendant has a duty to remove the part of the above 779mm2 of the land of this case from the land of this case to the plaintiff, with the exception of special circumstances.

(B) Judgment on the defendant's defense

The defendant is a land lease contract for the purpose of owning the building of this case. Since the lease contract of this case exercised the right to purchase the ground property by serving a preparatory document dated December 27, 2006, the plaintiff's claim for removal of the building and delivery of the site is groundless.

In light of the fact that the construction period for the building of this case takes place from March 2003 to February 2004, and the plaintiff concluded the lease contract of this case again with the defendant after the completion of the building of this case, it is reasonable to deem that the plaintiff impliedly consented to the construction of the building of this case. The monthly rent contract of this case (Evidence A 1) entered the building of this case as "automobile maintenance factory site and building" as the leased object. However, the previous building was already destroyed except the land portion of this case, and there was a building of this case constructed with the defendant's cost and effort. On the contrary, the lease period of this case under the lease contract of this case is just one year, and the building of this case is just one year, and the lease period of the building of this case is the lease contract of this case for the purpose of owning the building of this case or the land of this case and the previous building for the purpose of owning it as the lease contract of this case.

However, as seen earlier, the Plaintiff notified the Defendant of the refusal to renew the contract on August 26, 2005, and the fact that the preparatory document dated December 27, 2006 containing the Defendant’s expression of intent to claim the purchase of ground objects was delivered to the Plaintiff on January 2, 2007. As such, the Plaintiff and the Defendant concluded the sales contract for the instant building on January 2, 2007. Thus, the Defendant’s defense is well-grounded, and the Plaintiff’s primary claim for the removal of the building and the claim for the transfer of land are therefore groundless.

(C) Judgment on the plaintiff's second defense

First, the Plaintiff agreed to remove the instant building and restore it to its original state without any condition at the time of termination of the lease agreement with the Defendant at the time of the instant lease agreement. The Plaintiff asserted that the Plaintiff’s termination of the instant lease agreement on the ground of the Defendant’s nonperformance, and that the Defendant’s waiver or exercise of the right to purchase the ground property by the said agreement is contrary to the good faith principle. Thus, even if there was an agreement as alleged by the Plaintiff, such agreement is an agreement in violation of Article 643 of the Civil Act and is disadvantageous to the lessee, and thus, is disadvantageous to the lessee, and thus, is not effective (the Plaintiff was owned by Nonparty 1 as it was consistent with the previous building and thus owned by Nonparty 1, the Defendant cannot exercise the right to purchase the ground property. However, the Plaintiff’s assertion that the instant lease agreement was terminated on the ground that it was not a separate building separate from the instant sub-story, and that it was terminated without any reason as seen earlier.

In other words, the plaintiff, on November 18, 2003, designated the Japanese land of this case as a development facilitation district for balanced development of Gangwon-do, and prohibited the construction, expansion, and reconstruction of the building. Since the part extended and reconstructed by the defendant is an illegal building without the permission of the competent administrative agency, it cannot be subject to the ground water purchase right. Thus, it is insufficient to conclude that the building of this case was an illegal building, and there is no other evidence to prove otherwise, and the building remaining in economic value at the time of termination of the lease contract can be subject to the lessee's right to purchase the building even if it is not a legitimate building with the permission of the administrative agency (see Supreme Court Decision 97Da3753, Dec. 23, 1997; Supreme Court Decision 97Da3753, Dec. 23, 1997, etc.).

(2) As to the conjunctive claim

The plaintiff preliminaryly asserted that the building of this case was extended or reconstructed to the previous building without the consent of the plaintiff, and it was consistent with the previous building. At the time of the lease contract of this case, the defendant agreed to restore and return each part of the building stated in the preliminary claim to the plaintiff later. Thus, if the building of this case is affiliated with the previous building as alleged by the plaintiff, the building of this case is owned by the non-party 1, who is the owner of the previous building, and the plaintiff does not have the right to seek removal against the defendant. Thus, the plaintiff's assertion in itself is without merit, and even if there was a restoration agreement as alleged by the plaintiff, even if there is a family, such agreement is an agreement in violation of Article 643 of the Civil Act and is disadvantageous to the lessee, and thus, it is no more effective as it violates the mandatory provisions of Article 652 of the Civil Act. Thus, the plaintiff's preliminary claim for removal is without merit

B. Determination on the claim for restitution of unjust enrichment

(1) Return of unjust enrichment

As seen earlier, the lease contract of this case terminated on August 31, 2005. In full view of the purport of the entire pleadings in the statement No. 33, the Defendant may recognize the fact that the Plaintiff completed possession of the building of this case from among the land of this case, on October 15, 2007, pursuant to the judgment of the first instance court, which rendered a declaration of provisional execution on October 15, 2007. According to the above facts, the Defendant shall obtain profit equivalent to the profit of using the land of this case as stated in the purport of claim 779.5 square meters among the land of this case, and suffered damage equivalent to the Plaintiff. Thus, the Defendant is obligated to return the Plaintiff’s profit of using the building of this case from September 1, 2005 to October 15, 2007, which is the date following the termination date of the lease contract of this case to the end date of possession by the Defendant.

(2) Scope of unjust enrichment to be returned

Furthermore, with respect to the amount of unjust enrichment to be returned by the defendant, the amount of profit from possession and use of the real estate is equivalent to 2.5 billion won in ordinary cases. According to the results of appraisal of rent of the non-party 7 of the first instance court, if there is no deposit for lease, it is about 9,250,06 won in September 1, 2005 to August 31, 2006 (=8,90,000 won) x 7.6% in interest rate of 9.0 per annum x 1.6% in the following day x 12 months in commercial banks (the same shall apply hereinafter) ± 9.3 billion won in terms of 2.5 billion won in terms of 30,000 won in terms of 90,000 won in terms of 9.3 billion won in terms of 90,000 won in terms of 90,000 won in terms of 9,000 won in terms of 9.7.

Meanwhile, as seen earlier, the Defendant paid to the Plaintiff the sum of KRW 70 million each month from September 1, 2005 to April 30, 2007, and the Plaintiff is entitled to deduct KRW 35 million from the above unjust enrichment. As such, the amount of unjust enrichment to be returned by the Defendant is obviously 129,964,120 won [the amount of unjust enrichment to be returned to the Defendant from September 1, 2005 to October 15, 2007 [the amount of KRW 234,964,232 x 9,104,100 + 12 months + 9,312,09 x 13.5 months x 13.5 months) - 35 million - 196,1296]. However, the amount of unjust enrichment to be returned to the Defendant is obviously 129,1296,196.

(3) Offsets

Since the defendant asserts that his claim for the purchase price of the building of this case against the plaintiff is offset against unjust enrichment claim per rent, according to the market price appraisal result of the appraiser non-party 7 of the first instance trial, the market price of the building of this case around September 1, 2005 is 293,409,600 won (336,545,600 won - 43,136,000 won in the market price of the first floor among the previous buildings owned by non-party 1), and thereafter, the market price of the building of this case is confirmed to be the same amount as that of the plaintiff's claim for the purchase of the building of this case around January 2, 2007. Meanwhile, since the defendant's claim for the purchase of this case is confirmed to be equal as the market price of the building of this case, the obligation of the plaintiff to pay the purchase price and the obligation to claim the purchase price due to the exercise of the above above above above above above above above ground objects are not fulfilled simultaneously, but it is clear that the plaintiff's claim for unjust enrichment 1610.

C. Determination on the part claiming restoration construction costs

The plaintiff asserts that the defendant is obligated to pay the above amount to the plaintiff, since the plaintiff removed the building of this case in accordance with the judgment of the first instance court of the provisional execution sentence and disbursed KRW 18 million with expenses for restoration work, such as molds and fences, but the plaintiff's claim for removal of the building of this case is without merit as seen above. Thus, the plaintiff's claim on the premise that the request for removal of the building of this case is legitimate is without merit.

3. Conclusion

Therefore, the plaintiff's primary and conjunctive claims as to the part of the claim for removal of a building and the plaintiff's remaining claims are all dismissed without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the part against the defendant in the judgment of the court of first instance against the defendant is revoked, the plaintiff's claim corresponding to the revoked part is dismissed, and the plaintiff's claim as to the additional part of the removal of a building is dismissed in the trial and all the plaintiff's claim expanded

Judges Yellow Freeboard (Presiding Judge)