퇴거
1. All appeals by the Defendants are dismissed.
2. The costs of appeal are assessed against the Defendants.
Purport of claim and appeal
1.
1. 제1심 판결의 인용 이 법원이 이 사건에 관하여 설시할 이유는, 제1심 판결문 제2면 15행의 “이 사건 무허가건물을”을 “이 사건 무허가건물 중 별지 도면 표시 (ㄱ), (ㄴ), (ㅁ), (ㅂ), (ㅅ), (ㅇ), (ㅈ), (ㅊ), (ㅋ), (ㄱ)의 각 점을 순차로 연결한 선내 ㉮ 부분 55㎡를”로 고치고, 아래 제2항과 같이 추가로 판단하는 외에는 제1심 판결문의 기재와 같으므로, 민사소송법 제420조 본문에 따라 이를 그대로 인용한다.
2. Additional matters to be determined;
A. The Defendants asserted that the Plaintiff is only the owner of the instant land, and is not the owner of the instant unauthorized building, but also the lessee or lessee of the instant unauthorized building, and that the Plaintiff cannot claim the eviction from the said building.
B. Even in cases where the owner of land is entitled to demand the owner of the building to remove the building and deliver the site on the ground that the building has no right to use the land for its existence, if a person other than the owner of the building occupies the building, the owner of the land shall not implement the removal, etc. of the building unless such a removal is made.
Therefore, the ownership of land at that time is deemed to be hindered in the smooth realization of the land by the aforementioned possession. As such, the landowner may request the possessor of the building to withdraw from the building as an exclusion of interference based on his/her own ownership (see, e.g., Supreme Court Decision 2010Da43801, Aug. 19, 2010). Therefore, the aforementioned assertion by the Defendants, contrary thereto, cannot be accepted.
3. Thus, the plaintiff's claim against the defendants is justified, and the judgment of the court of first instance is just in conclusion, and the defendants' appeal is dismissed in its entirety as it is without merit. It is so decided as per Disposition.