2. As to each share indicated in the separate sheet No. 1; Defendant Korea Land Trust Co., Ltd. implements the procedure for registration of cancellation of ownership transfer registration completed by the receipt of Sep. 4, 2003 to Defendant 1; Defendant 1 implements the procedure for registration of ownership transfer registration based on the acquisition of the part of exclusive ownership listed in the separate sheet No. 2 on May 8, 2006 to the Plaintiff.

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

A. On December 14, 2001, Defendant 1 purchased Samsung Dong-dong (number 1 omitted), Samsungdong (number 2 omitted), 834.5m2, Samsung Dong (hereinafter “instant land”) and completed the registration of ownership transfer under the name of Defendant 1 on March 12, 2002, and entered into a construction contract to newly construct an apartment house (hereinafter “instant apartment house”) with 2nd and 12th and 19m2 on the instant land (hereinafter “instant apartment house”) on the instant land between Defendant 1 and quasi-construction Co., Ltd. on April 26, 2002.

B. From May 1, 2002, quasi-construction corporation commenced the construction of the apartment of this case. Defendant 1 entered into a sales contract on May 15, 2002 with respect to the apartment of this case (No. 1 omitted) and entered into a sales contract with 19 households of the apartment of this case and started to receive the sales price.

C. On September 4, 2003, between Defendant Korea Land Trust Co., Ltd. (hereinafter “Defendant Korea Land Trust”) and Defendant Korea Land Trust (hereinafter “Defendant Korea Land Trust”), Defendant 1 entered into a real estate security trust agreement with the first beneficiary Co., Ltd. (hereinafter “Seong Mutual Savings Bank”), Defendant 1, and Nonparty 1 with respect to the instant land. On the same day, Defendant Korea Land Trust entered into a real estate security trust agreement with Defendant Korea Land Trust based on the trust (hereinafter “instant trust registration”).

D. Meanwhile, on September 5, 2003, Franchi Mutual Savings Bank loaned KRW 2.5 billion to Defendant 1. On July 8, 2004, the Seoul Central District Court applied for provisional attachment against the apartment of this case as Seoul Central District Court 2004Kadan90355 on July 8, 2004 in order to preserve the above loan claims without obtaining approval for the use of the apartment of this case. According to the provisional attachment decision of the above court on July 26, 2004, each of the apartment of this case was registered for preservation of ownership under Defendant 1 and the provisional attachment registration of Fachi Mutual Savings Bank was completed, and on the same day, Fachi Mutual Savings Bank completed the registration of the establishment of a mortgage over the maximum debt amount of KRW 3.25 billion.

E. On November 30, 2004, Fusung Mutual Savings Bank applied for the auction of real estate concerning the apartment of this case as Seoul Central District Court No. 2004Ma4606, Nov. 30, 2004. The Plaintiff was awarded a successful bid for the portion of exclusive ownership as stated in the attached Table 2 among the apartment of this case in the auction procedure for the above real estate, and completed the registration of ownership transfer as to the portion of exclusive ownership on June 28, 2006 (No. 2 omitted). At the time of the auction for the above real estate, the appraised value was evaluated as both the building portion and the site ownership of the land.

F. Meanwhile, on July 8, 2008, Defendant 1 entered into a contract on the change of real estate security trust with the beneficiary between Defendant Korea Land Trust and Defendant 1, and the trust period changed to 30 years from the date of concluding the trust contract.

G. On August 25, 2003, the weekly supervision conducted by Nonparty 2, who is the supervisor of the instant apartment construction, stated that “the instant apartment construction works” was “the concrete typology of the rooftop floor, the 5th floor mold (the wooden), and the 2nd floor tent installation (metallic),” and the supervision conducted on September 8, 2003 stated that “the construction of fence concrete typlow, the air-mixed pipe, the installation of the 2nd floor window,” and on the other hand, around August 18, 2003, the percentage of construction of the instant apartment was 2.193%.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 9, Eul evidence No. 10, Eul evidence No. 4, Eul evidence No. 8, Eul evidence No. 9 (including each number), the inquiry results on the Han Construction Co., Ltd., a corporation of the court of first instance, the purport of the whole pleadings.

2. Nullity of separate disposition and occurrence of obligation to register ownership transfer.

A. Legal doctrine

1) Article 20 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”) provides that a sectional owner’s right to use a site shall follow the disposition of his section for exclusive use (Paragraph 1), and that a sectional owner may not dispose of his right to use a site separately from his section for exclusive use unless otherwise provided by the agreement or notarial deed (Paragraph 2 and 4), and that the prohibition of separate disposition cannot be asserted against a third party who has acquired a real right in good faith without registering its purport (Paragraph 3). The purport of the above provision is to prevent the separation of a section for exclusive use from being separated into a section for exclusive use and a right to use a site from a section for exclusive use and prevent the occurrence of sectional ownership without a right to use a site by preventing the occurrence of a right to use a site (see Supreme Court Decision 2004Da742, Mar. 10, 206).

2) On the other hand, in order for a sectioned building to be established, there should be an expression of intent to divide the building into the object of sectional ownership, i.e., the object of sectional ownership (see Supreme Court Decision 98Da35020 delivered on July 27, 199).

B. Determination

1) Whether the entity has independence in structural structure and use

As to whether the apartment of this case was subject to the Aggregate Buildings Act at the time of the registration of the trust of this case, that is, whether the apartment of this case is subject to the Aggregate Buildings Act, that is, whether the divided ownership as an aggregate building has been established as an independent real estate, the minimum columns, roof, and main walls have been made (see Supreme Court Decision 2002Da21592, 21608, May 30, 2003). As seen above, since the construction of concrete building of the rooftop floor of this case was completed around August 25, 2003, it is reasonable to view that the apartment of this case was built of columns, main walls, and roof slabs of each floor from the second floor to the 12th floor above the ground until August 25, 2003, and therefore, it is reasonable to view that the apartment of this case was a partitioned building of this case, and that the building of this case, including the plaintiff, was awarded a successful building, and that the building structure of each floor of this case, including the building of this case, is completed.

Unlike this, solely on the fact that the progress ratio including the structural construction around August 18, 2003 is merely 22.193%, the mere fact that the trust registration of this case was completed does not constitute a failure to meet the requirement of independence in structural and use around September 4, 2003 (see Supreme Court Decision 2000Da51872, Jan. 16, 2001).

2) Whether there was a separate act

In a case where the owner of a newly-built building sells the building by units, it can be deemed that there was a division act when he expresses his intention to sell the building by advertising, etc. (see Supreme Court Decision 2004Da742, Mar. 10, 2006). Defendant 1 newly constructed the apartment of this case and concluded the sales contract on each of the partitioned buildings from May 13, 2002, and then there was a division act from that time.

As to this, the Defendants asserted that, in principle, the time when divided ownership is constituted is the time when the entire building is completed and it is registered as a divided building in the building ledger (see Supreme Court Decisions 98Da35020, Jul. 27, 1999; 2004Da67691, Nov. 9, 2006; 2004Da67691, Nov. 9, 2006). As long as the building management ledger for the apartment of this case was not prepared at the time of the registration of the trust of this case, the

The above Decision 98Da35020 should be understood to the purport that the section for exclusive use and common use should be determined as of the time of registration in the house register. The above Decision 2004Da67691 decided on the original acquisitor of an aggregate building in the case of a change in the construction business operator of an aggregate building. It cannot be interpreted to the purport that a divided building is established only by registering it in the house register after the act of distinction between independence and use in general structure and the house register has occurred (see Supreme Court Decision 60Da60, Supreme Court Decision 60, Court Library, Court Library, and Supreme Court Decision 2004Da742). The above argument by the Defendants cannot be accepted.

(iii) the invalidation of a separate disposition and the occurrence of a duty to transfer ownership;

Therefore, as long as the sectional ownership has already been established with respect to each of the sections of the apartment of this case on September 4, 2003 after the completion of the registration of the trust of this case, since the real estate security trust agreement concluded by Defendant 1 with respect to the land of this case against the Defendant Korea Land Trust violates Article 20 of the Aggregate Buildings Act, the registration of the trust of this case shall be cancelled.

As above, since the registration of transfer of ownership in the name of Defendant Korea Land Trust was not cancelled as to the land of this case, only the registration of ownership was completed in the name of Defendant 1 with respect to the section of exclusive ownership of the apartment building of this case under the condition that the ownership was not restored in the name of Defendant 1. The Plaintiff acquired the right to use site under Article 2 subparag. 6 of the Aggregate Buildings Act by obtaining a successful bid of the section of exclusive ownership under Article 2 subparag. 6 of the Aggregate Buildings Act before the registration of ownership ownership was made. As to the portion of the land of this case, Defendant 1 is obligated to implement the registration procedure for transfer of ownership on the ground of the acquisition of section of exclusive ownership pursuant to Article 57-3(1) of the Registration of Real Estate Act.

On the other hand, the plaintiff filed for the cancellation of the above shares among the registration of the trust of this case against the defendant Korea's land trust in subrogation of the defendant 1 by claiming the above shares transfer registration against the defendant 1 as the preserved bond. As such, the defendant Korea Land Trust is obligated to implement the cancellation registration procedure against the defendant 1.

4) As to specific shares

Article 12(1) of the Multi-Family Building Act provides that "The share of each co-owner shall be based on the ratio of the area of the section for exclusive use owned by him/her," and comprehensively taking account of the overall purport of the pleadings in each statement in subparagraph 1 through 3 of Article 12(1) of the Multi-Family Building Act, the aggregate of the area of the section for exclusive use by 19 households of the apartment house of this case is 201.78 square meters, and the area of the section for exclusive use by 108.97 square meters can be recognized.

Therefore, when calculating the shares to be transferred to a site ownership (number 2 omitted), the shares in the attached Table 1 are as follows: ① 45.201/5 of the shares (number 1 omitted) of 834.5 square meters in Gangnam-gu Seoul Metropolitan Government Samsungdong (number 1 omitted) (=834.5 square meters x 108.97/201.78 square meters) and ② 4.842/42 shares in the Gangnam-gu Seoul Metropolitan Government Samsungdong (number 2 omitted) of 89.4 square meters in 89.4 square meters in 89.4 square meters in 89.4 square meters in 108.97/201.78 square meters in 2011).

Therefore, with respect to each share indicated in the separate sheet No. 1, the defendant Korea Land Trust is obligated to perform the procedure for cancellation of ownership transfer registration completed on September 4, 2003 by the Seoul Central District Court, Gangnam Branch of the Seoul Central District Court, and the defendant 1 is obligated to perform the procedure for registration of ownership transfer based on the acquisition of the section for exclusive use of real estate listed in the separate sheet No. 2 on May 8, 2006 to the plaintiff.

3. Judgment on the defendants' assertion

A. As to the assertion by a bona fide third party

1) The Defendants asserted that Article 20(3) of the Aggregate Buildings Act provides that the prohibition of separate disposition cannot be asserted against a third party who has acquired a real right in good faith unless the purport thereof is registered. The Defendants asserted that the Defendant’s Korea Land Trust constitutes a third party of “faith” under Article 20(3) of the Aggregate Buildings Act.

2) In principle, a third party under Article 20(3) of the Act on the Ownership and Management of Aggregate Buildings refers to a third party who has acquired land which is the object of the right to use site without gathering the circumstances that are the site of an aggregate building (see Supreme Court Decision 2009Da26145, Jun. 23, 2009). As seen above, at the time when concluding a real estate security trust contract on September 4, 2003, the apartment of this case meets the requirements of independent buildings such as columns, roof and slves, etc. over the 12th floor, and the real estate security trust contract (Evidence No. 4-2) is stipulated in Article 4 of the special terms and conditions that "a building (including a facility, completed or incomplete building) constructed on the real estate without any separate trust procedure shall be deemed a trust property under this trust contract." In light of the circumstances, there is no evidence to find that the land of this case is an aggregate building site, and there is no other evidence to find it to constitute a third party under the Act.

B. As to the assertion that the Defendant Korea Land Trust acquired the entire ownership of the instant apartment

1) The Defendants asserted that since Article 4 of the Special Clause on the said Real Estate Security Trust Contract provides that “any building constructed on the trust real estate shall be deemed trust property under this trust agreement,” the Defendant Korea Land Trust shall be deemed to have acquired the entire ownership of the instant apartment complex, and accordingly, the section for exclusive use and the right to use the site shall not be separately disposed of.”

2) On the other hand, the contents of Article 4 of the Special Agreement on the Security Trust of Real Estate are merely the purport that where an aggregate building is completed, the aggregate building shall be deemed as trust property and the registration of the trust is completed. The above Special Agreement cannot be deemed as the acquisition of ownership even with respect to the section for exclusive use concerning the apartment of this case on the sole basis of the above Special Agreement before the registration of the trust of the aggregate building is completed.

4. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted on the grounds of all reasons, and the judgment of the court of first instance is unfair, so the judgment of the court of first instance is revoked, and as to each share stated in the separate sheet No. 1, the defendant Korea Land Trust shall order the execution of the procedure for cancellation of ownership transfer registration against the defendant 1, and it is so decided as per Disposition by ordering the defendant 1 to implement the procedure for ownership transfer registration against the plaintiff.

[Attachment]

Judges Gangnam-gu (Presiding Judge) Kim Jong-ok