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서울북부지방법원 2020.01.21 2018가단120954

건물철거 등

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1. The defendant, within the limit of 1/5 shares, indicated in the attached Form No. 8, 9, 10, 11, 12, among the buildings listed in the attached Form No. 8, 9, 10

Reasons

1. Basic facts

A. On November 22, 2016, the Plaintiff purchased 2,542 square meters prior to D, E, 2,876 square meters and 1,550 square meters prior to F (hereinafter “instant land”) from Gangnam-gun, Gangwon-do, Gangwon-do, and completed the registration of ownership transfer on January 11, 2017.

B. In around 1961, Dong G leased H, adjacent to the instant land, and owned and owned a house with a size of 106.37 square meters on the said land. Of the foregoing housing, the part (a) in the ship (hereinafter “instant building”) (a) and 79 square meters (hereinafter “instant building”) connected each of the items in sequence with the said items are located on the ground of the instant land.

C. The deceased deceased on June 9, 2008, and the Defendant, I, J, K, and L inherited the deceased at the ratio of 1/5 shares.

[Ground of recognition] Facts without dispute, entry in Gap evidence 1 through 7 (including each number if there are several numbers) and the purport of the whole pleadings

2. Assertion and determination

A. According to the above facts of determination as to the cause of the claim, the building of this case was owned jointly by the defendant, I, J, K, and L, who is the heir due to the death of G, the original acquisitor, and as long as the heir of G, including the defendant, did not have a legitimate title to occupy the land of this case for the ownership of the building of this case, the plaintiff, the owner of the land of this case, is obligated to remove the building of this case and deliver the site thereof.

On the other hand, co-owners’ duty to remove a building is an indivisible obligation in its nature and a duty to remove the building within the limit of their respective shares (see Supreme Court Decision 80Da756, Jun. 24, 1980). Thus, the Defendant is obligated to remove the building within the limit of 1/5, which is one’s own shares in the building of this case, and deliver its site.

B. (i) The Defendant’s assertion G around 1981, when purchasing the instant land and Gangwon-gun D, and E land, the name of ownership on the registry was left in the future M., and thereafter, each of the said lands is due to a compulsory auction.