A. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) 67,201,00 won with 20% interest per annum from September 17, 2014 to the day of full payment.

B. All claims filed by the Plaintiff (Counterclaim Defendant) are dismissed.

2. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant).

3. The above paragraph 1(a) may be provisionally executed.

(a) Main claim;

The Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) has connected the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) with each point of 3,4,5,6,7,8, and 3 of the attached drawings among the area of 117 square meters and 32,231 square meters of forest land in line with each point of 1,2,3,8, and 1 of the same drawings, among the area of 117 square meters and 32,231 square meters in line with each point of 62,231 square meters in line, among the area of 367 square meters in Sinju-si ( Address 1 omitted), the Defendant (Counterclaim Defendant; hereinafter referred to as the “Defendant”) shall remove each part of the above 36 square meters in line with each point of 1,2,38, and 366 square meters in line with each point of 9,10,11,12,99 square meters in a building on the ground of 6 square meters in line with each point.

(b) Counterclaim;

The plaintiff shall pay to the defendant 67,201,00 won with 20% interest per annum from the sentencing date of this case to the day of full payment.

2. Purport of appeal

The judgment of the first instance court is revoked, and the judgment that dismissed the main claim and the judgment like the purport of the counterclaim is sought.

The fact that each of the above buildings owned the ownership transfer registration in the Plaintiff’s future on April 11, 2002 due to the sale on the same day as the receipt of No. 8838 on April 11, 2002 with respect to the land of this case by combining each of the above land (hereinafter referred to as “each of the instant land”). The Defendant, as indicated in the purport of the claim, owns a cement brick structure, a building of 123 square meters (hereinafter referred to as “instant housing”), a prefabricated-type building of prefabricated-type one-story (hereinafter referred to as “instant inspection”), and a building of 36 square meters of a prefabricated-type one-story building (hereinafter referred to as “instant inspection”), and the Plaintiff’s father Nonparty 2 died on or after December 12, 2013, does not conflict between the parties concerned.

2. The plaintiff and the defendant's assertion

With respect to the removal and delivery of each of the instant buildings owned by the Defendant on each of the instant lands, the Defendant concluded a lease agreement with Nonparty 2, the actual owner of each of the instant lands, and even if Nonparty 2 is not the actual owner of each of the instant lands, the Plaintiff shall be held liable under the said lease agreement in accordance with the legal principles of ratification by apparent agency or unauthorized Representation, and thus, the said lease agreement was terminated upon the Plaintiff’s refusal of renewal of the lease agreement, and thus, the Plaintiff exercised the right to demand the purchase of each of the instant buildings.

3. Determination

(a) Facts of recognition;

보건대, 갑 제1호증, 갑 제3호증의 1 내지 7, 갑 제4, 7호증, 을 제1호증, 을 제5호증의 1, 2, 을 제7, 9, 10호증, 을 제14호증의 1, 2, 3의 각 기재, 제1심의 국민은행 주식회사, 우정사업본부에 대한 각 금융거래정보제출명령 결과, 당심 증인 소외 3의 증언 및 변론 전체의 취지에 의하면, ① 이 사건 각 토지 및 그에 인접한 공주시 (주소 3 생략)에 관하여, 전 소유자 소외 4로부터 부동산 중개업에 종사하였던 소외 2의 아들인 소외 1 앞으로 1963. 12. 30. 매매를 원인으로 대전지방법원 공주지원 1963. 12. 31. 접수 제13263호로 소유권이전등기가 마쳐지고, 소외 2 앞으로 1989. 1. 23. 매매예약을 원인으로 같은 법원 1989. 1. 25. 접수 제1644호로 소유권이전청구권가등기가 마쳐졌으며, 소외 2의 아들인 원고 앞으로 2002. 4. 11. 매매를 원인으로 같은 법원 2002. 4. 11. 접수 제8838호로 소유권이전등기가 마쳐진 사실, 소외 2의 위 가등기는 현재까지도 말소되지 않고 있는 사실, ② 이 사건 주택 부분에는 원래 소외 5가 1990년 초반경까지 살던 구건물이 있었는데, 그 이후 소외 6이 소외 2에게 200만 원을 주고 이를 개축한 사실, 피고가 2000. 10. 15. 소외 6으로부터 이 사건 주택을 매수하고 그때부터 이를 점유, 사용해온 사실, 매매 당시 피고는 소외 6과 ‘지주에게 사용료 조로 1년에 백미 1가마를 지급하는 것을 승계하기로 한다’는 약정을 한 사실, ③ 그 며칠 후 소외 2가 서울에서 내려왔을 때 소외 6이 피고를 소개하였고 피고와 소외 2는 토지 임료를 연 20만 원으로 약정한 사실, 피고는 소외 2에게 2004. 9. 24. 20만 원, 2005. 12. 1. 40만 원, 2009. 5. 15. 60만 원, 2010. 5. 18. 20만 원, 2011. 6. 7. 20만 원, 2012. 5. 29. 20만 원을 각각 송금한 사실, 피고는 2004. 12. 6. 이 사건 각 토지 중 (주소 2 생략)에 전입신고를 마친 사실, 원고도 이러한 사정을 잘 알면서도 아무런 이의를 하지 않은 사실, ④ 원, 피고, 소외 2, 소외 2의 아들인 소외 7은 2009. 5. 9. 이 사건 각 토지 중 (주소 1 생략)에서 이 사건 각 토지에 관하여 이야기를 나누었는데 그 과정에서 소외 2는 ‘소외 4한테 땅 샀어 내가’라고 말한 사실, ⑤ 소외 3은 이 사건 각 토지 부근에 살면서 그 토지사용료로 소외 2에게 2010. 6. 30., 2011. 5. 30. 각각 20만 원을 송금한 사실, 소외 9는 1994.부터 이 사건 각 토지에 인접한 (주소 3 생략)에 살면서 2012.까지 토지사용료를 소외 2에게 지급한 사실, 이 사건 각 토지 부근에 사는 2명 역시 소외 2에게 토지사용료를 지급해온 사실이 각 인정된다.

B. Determination

In the above facts, it is difficult to understand that Nonparty 2, who was engaged in the real estate brokerage business, did not neglect the registration, and it is difficult to understand that Nonparty 2, who was engaged in the real estate brokerage business, did not neglect the deposit details of the Defendant’s deposit account in the passbook. Considering the fact that Nonparty 6, who was a donation or title trust, entered the cause of registration into a sale for convenience while making donation or title trust, etc., there is no evidence to deem that the Plaintiff or Nonparty 2, prior to 209, knew Nonparty 2 as the owner of each land of this case. If the Defendant occupied each land of this case without permission from 200 to 200, it is reasonable to view that Nonparty 2, who was engaged in the real estate brokerage business, did not know about the fact that Nonparty 2’s deposit details of the Defendant’s deposit account in the passbook, and that Nonparty 2 constructed a new building with Nonparty 2 at least KRW 200,000,000,000 to Nonparty 2, respectively, the Plaintiff and Nonparty 2, as the land of this case.

4. Exercising the defendant's right to demand ground water.

According to the following: (a) evidence No. 3-1 and evidence No. 15; and (b) appraisal results and the purport of the first instance trial appraiser No. 10, Nonparty 2 and the Plaintiff sent to the Defendant on May 22, 2009, any content-certified mail containing an expression of intent to demand the return of each land of this case and the removal of each building of this case; (c) the Defendant deposited KRW 200,000 in the Plaintiff on August 12, 2013; and (d) the value of each building of this case was recognized as a total of KRW 67,201,00; and (e) the lapse of six months from May 22, 2009, which is the notification date of termination of the lease contract of this case, is apparent, and the Defendant served a preparatory document with the court on April 3, 2013, which contains an expression of intent to exercise the right to demand the purchase on the Plaintiff.

According to the above facts, it is reasonable to view that a sales contract for each of the buildings of this case was concluded between the plaintiff and the defendant due to the exercise of the defendant's right to purchase ground water.

5. Determination on the main claim

As above, the defendant's right to demand the purchase of each of the buildings of this case is recognized, and the plaintiff did not intend to seek an explanation of each of the buildings of this case at the same time with the payment of purchase price for each of the buildings of this case. Thus, the plaintiff's right to demand the purchase

6. Judgment on the counterclaim

As seen earlier, it is reasonable to deem that the sales contract for each of the instant buildings was concluded between the Plaintiff and the Defendant. As such, the Plaintiff is obligated to pay to the Defendant damages for delay calculated at the rate of 20% per annum from September 17, 2014, which is the date the judgment was rendered, to the day of full payment, to the day of full payment, as set forth in the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, as the Defendant seeks.

7. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit is dismissed as it is without merit, and the defendant's claim of the counterclaim is accepted as reasonable. Since the judgment of the court of first instance is unfair with different conclusions, the part against the defendant in the judgment of the court of first instance which accepted the defendant's appeal and dismissed the plaintiff's claim of the principal lawsuit and ordered the defendant to pay the above money in accordance with the counterclaim. It is so decided as per Disposition.

[Attachment]

Judges Choi Jin-hun (Presiding Judge)