Main Issues

Whether the possession of an illegal building and the establishment of unjust enrichment from the land;

Summary of Judgment

Where a building is established without its title, a prop may demand the removal of the building from the building to the mere occupant of the building, not the owner of the building, but the return of the land rent or unjust enrichment shall not be claimed.

[Reference Provisions]

Article 741 of the Civil Act

Plaintiff, Appellant

Han Han Bank Co., Ltd.

Defendant, appellant and appellant

Guide

Judgment of the lower court

Daejeon District Court of the first instance (75 Gohap578)

Text

The original judgment shall be revoked.

Purport of claim

The defendant shall pay to the plaintiff money in proportion to KRW 1,238,533 each month from May 21, 1975 to the time of delivering the real estate recorded in the attached list. The judgment that the lawsuit cost shall be borne by the defendant and a provisional execution declaration

Purport of appeal

The part against the defendant in the original judgment shall be revoked and the decision shall be rendered in accordance with paragraph (2).

Reasons

On May 21, 1972, the real estate stated in the separate sheet (hereinafter referred to as this site) is claimed by the plaintiff on May 29, 1972 and the registration of ownership transfer was completed under the plaintiff's name on May 21, 1973, and the defendant has a duty to return benefits obtained without legal cause by occupying the building site jointly with the non-party, which was constructed on the above site without legitimate title. Thus, even if the defendant used the building site to the extent necessary for its use as alleged by the plaintiff, even if he occupies the building site, the benefits arising from the building site on which the building was constructed without legal cause are returned to the owner of the building. Thus, the defendant, who is a mere occupant of the building, demands the removal from the building site to exclude the infringement of ownership, such as this case, shall be deemed as having a duty to return unjust enrichment.