[2] The case holding that Gap, who is a co-owner of a building, Eul, Eul, and two floors, are entitled to lease the ground floor solely because Gap's co-ownership of the ground floor is more than Eul's co-ownership, in case where Gap and Eul, which are co-owners of a building, separately occupy and distribute profits by leasing them, but Gap's co-ownership of the ground floor is less than that of other co-owners and thus Gap's co-ownership of the ground floor is more

[2] In a case where Gap, Eul, Eul, and two floors, which are one-half share ownership of each one-half of the buildings, possess divided ownership and decide to rent and distribute profits from the ground floor, but the area of the first floor possession of Gap's floor was less than that of Eul due to the entrance and stairs leading to the ground floor, and thus Gap agreed to have priority over others, the case holding that Gap has the right to lease the ground floor solely on the ground that the form of ownership of the building was the first floor, the second floor, the second floor, and the second floor was the actual sectional ownership, and the second floor was the simple co-ownership, and in light of the content of agreement between Eul and Eul, it is reasonable to view that Gap's co-ownership of the ground floor is more than Eul's share in the compensation for the store with smaller area, and it is reasonable to view that Gap's co-ownership of the ground floor was more than Eul's share in the area

The defendant shall pay to the plaintiff 11,812,50 won with 5% interest per annum from June 27, 2002 to May 31, 2003 and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 25% is borne by the Plaintiff, and 75% is borne by the Defendant, respectively.

4. The portion ordering payment under paragraph (1) may be provisionally executed.

The defendant shall pay to the plaintiff 16,300,000 won with 25% interest per annum from the day after the delivery of a copy of the complaint to the day of complete payment (the plaintiff reduced the claim in the trial but seems to have been expanded to the original purport of the claim according to the plaintiff's written brief dated June 16, 2003).

2. Purport of appeal

The part against the plaintiff in the judgment of the first instance is revoked, and the defendant shall pay to the plaintiff 15,250,000 won with 25% interest per annum from the day after the delivery of a copy of the complaint to the day of complete payment.

A. On May 23, 1994, the Plaintiff and west-si newly constructed a building listed in the separate sheet (hereinafter referred to as the “instant building”) and completed registration of preservation of ownership as co-owners with one-half shares, each household for the second floor, three shops left to the port of the building among the six stores of the first floor, and three shops to the right side of the building were classified by the Plaintiff, respectively.

B. However, one of the three stores that the Plaintiff intended to use is less than another store due to the entrance and stairs of the floor, and the Plaintiff and Seodaemun-si, as a compensation therefor, has divided one half of the deposit amount into the 350,000 won out of the monthly rent, and as a result, on May 15, 1997, the Plaintiff agreed to have priority over the Plaintiff, and on May 15, 1997, 40 square meters of the 2-2 store on the 20,000,000, monthly rent of 400,000, and the lease period of 40,000,000, and the rent of 40,000,00,000 as of May 15, 199, and was paid as the above agreed (No. 1,5,6,70).

C. Around January 1, 1999, the Defendant acquired co-ownership shares in the building of this case from the Dong Seomun-si, and took over the right to use and profit from the store and house used by Seo Seomun-si as it is, and also accepted the obligation to return the deposit for lease on the ground floor corresponding to its shares. However, after the expiration of the above lease term, the Plaintiff was unable to lease the above strato's store due to the dispute, and the Plaintiff became unable to lease the above strato's store (Evidence No. 7 and the purport of the oral argument).

D. Meanwhile, on May 20, 1999, the Defendant leased approximately three square meters out of the site of the building of this case jointly owned to Park Ho without any doubt with the Plaintiff as of May 20, 199, by the term of 2,000,000, and the term of lease on May 20, 2001. On May 11, 2001, the Defendant additionally received KRW 150,000 as monthly rent and extended the term of lease by May 20, 202, but the additional rent did not receive KRW 450,00 for three months and 3 months (Article 2, 3, 8, and the previous purport of oral argument).

E. Around May 2002, the Defendant transferred his share to a third party on the instant building, and returned 2,000,000 won of the deposit for lease to Park Jong-chul (this evidence No. 1 and the previous purport of the pleading).

2. The plaintiff's assertion

The agreement between the plaintiff and the defendant on the use relation of the building of this case and the rent for the branch floor of Seodaemun-si is effective for the defendant who acquired the share of the house of this case. Thus, the defendant is liable to compensate the plaintiff for damages equivalent to the rent that the plaintiff could have received as agreed during the period that could not be leased to the plaintiff. Even if the agreement does not extend to the defendant, since the defendant occupies the 1st floor of the building in excess of his own share, the defendant must return unjust enrichment corresponding thereto to the plaintiff. Since the expenses incurred in installing the entrance and stairs of the branch of this case are the expenses for the management of the common property, the defendant should share the expenses according to his share. Since it is reasonable to view the scope of unjust enrichment or the expenses for share of the branch of this case to the extent of the above amount of damages in light of the above agreement, the defendant is liable to pay the plaintiff the amount of 12,600

In addition, the defendant should return to the plaintiff the lease deposit and the rent of KRW 3,700,000 which he received in excess of his own share out of the rent that he leased to the Park Gyeongn at will.

3. Determination

A. Although the agreement on the rent of the branch of the building in this case between the plaintiff and the defendant who acquired the co-ownership share does not naturally have effect on the part of the defendant, the ownership form of the building in this case is substantially divided ownership of the first and second floors, and the branch of the building in this case is simple co-ownership. In light of all the circumstances indicated in this case, such as the agreement with the plaintiff about the compensation for the store whose area is small, it is reasonable to view that the plaintiff's co-ownership in the branch of the building in this case is more than the shares of other co-owners. Therefore, the plaintiff can lease the above branch without the defendant's consent. As recognized earlier, the plaintiff was unable to sublet the branch of the building due to the defendant's non-performance of the obligation to return the rent of the branch of the building in this case, and therefore the defendant is liable to compensate the above damages to the plaintiff, and the amount of damages is equivalent to KRW 350,000 won per month during which the branch of the building

In addition, as recognized earlier, the Defendant arbitrarily leased part of the instant site to Park Gung, thereby obtaining the legal interest equivalent to the statutory interest during the lease term and the benefit equivalent to the rent, and thus, is obliged to return it to the Plaintiff.

B. However, in light of the settlement relationship with the above land level, it is reasonable that the plaintiff's monthly rent of 400,000 won, 350,000 won, which the plaintiff received from the land level from the land level from January 1, 1999 to May 15, 199 when the lease contract with the land level had been terminated. However, it is reasonable to divide the plaintiff and the defendant's remaining 50,000 won into 25,00 won. Thus, the defendant's assertion pointing this out is with merit within the scope of the above recognition.

C. Damages

(a) Damage equivalent to the rent on the ground floor: 12,600,000 won [=350,000 won x 36 months (from May 5, 199 to April 2002]; or

(b) Undue gains equivalent to legal interest on KRW 1,00,000: 150,000 [=1,00,000 x 0.05 x 3 years (from May 20, 199 to May 20, 2002]; or

(3) Unjust enrichment equivalent to rent: 225,000 won (=450,000 won x 1/2)

(4) Deduction: 12,500 won (=25,000 won x 4.5 months)

(e) Total amount: 12,862,500 won;

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 12,862,50 won with 5% per annum under the Civil Act from June 27, 2002 to May 31, 2003, the day following the delivery day of a copy of the complaint, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, so the plaintiff's claim is justified within the above recognition scope, and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance which has made a different conclusion is unfair, it is so unfair that part of the plaintiff's appeal is accepted, and it is so decided as per Disposition. [Attachment]

Judges Kim Jong-il (Presiding Judge)