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(영문) 수원지방법원 안산지원 2015. 10. 08. 선고 2014가합3358 판결

소유권보존등기말소 등[국패]

Title

Cancellation, etc. of registration of preservation

Summary

As long as the Plaintiff’s act of preserving common property based on ownership on the instant land was acknowledged as a claim against the above Defendants, the extinctive prescription is not applicable. Therefore, the Defendants are obliged to register cancellation of ownership preservation.

Cases

2014 Gohap3358 Cancellation, etc. of registration of initial ownership

Plaintiff

○ ○

Defendant

○○ Kim & 24

Conclusion of Pleadings

September 10, 2015

Imposition of Judgment

October 8, 2015

Text

1. Of the instant lawsuit, the part of the Plaintiff’s claim against Defendant Kim-○ is dismissed.

2. As to the Plaintiff (Appointed Party),

A. As to the real estate listed in paragraph (1) of the attached Table 3’s list of real estate, Defendant Yellow ○ performed each procedure for the registration of cancellation of ownership transfer, which was completed on March 27, 1992 by the Suwon District Court No. 17456 on March 27, 192 with respect to the registration of transfer of ownership, which was completed on March 27, 1992 by the same court No. 17457 on March 27, 1992, and the real estate listed in paragraph (3) of the same list, as to the real estate listed in paragraph (1) of the attached Table No. 3’s list of real estate;

B. As to each real estate listed in [Attachment 3’s list Nos. 1 through 3, Defendant Han-dong, Inc, performed the procedure for the cancellation of each transfer of ownership registration, which was completed by the Suwon District Court of Suwon District on December 26, 2006, No. 149672.

C. As to the real estate listed in paragraph (4) of the attached Table 3’s list of real estate, Defendant Ma○○ performed the procedure for registration of cancellation of ownership transfer registration, which was completed as No. 48717 on July 29, 1992 by Suwon District Court Branch of Suwon District Court.

D. As to the real estate listed in paragraph (4) of the list of the attached Table 3, Defendant Lee Dong-○ performed the procedure for registration of cancellation of ownership transfer registration, which was completed by the Suwon District Court No. 136306, Oct. 30, 1997 with respect to the real estate listed in paragraph (5) of the same list, the procedure for registration of cancellation of ownership transfer registration, which was completed by the same court No. 136307, Oct. 30, 1997;

E. Defendant ○○○ performed the procedure for registration of cancellation of ownership transfer registration, which was completed on February 20, 1992, No. 10076, which was completed on February 20, 1992, with respect to the real estate listed in paragraph (5) of the attached list 3 real estate.

F. Defendant Lee Dong-○, Inc, carried out the procedure for registration of cancellation of ownership transfer registration, which was completed on February 14, 1992 with respect to the real estate listed in paragraph (6) of the attached list No. 3 in the Suwon District Court of Suwon District on the attached list No. 892, which was completed on February 14, 1992; and the procedure for registration of cancellation of ownership transfer registration, which was completed on February 14, 1992 by the same court

G. As to the real estate listed in paragraph (8) of the attached Table 3’s list of real estate, the Defendant Gangnam-gu shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed under No. 48718, Jul. 29, 1992 by Suwon District Court, Suwon-gu, Suwon District Court

H. Defendant Kim ○○ performed the procedure for the cancellation of registration of each transfer of ownership, which was completed under No. 146157 of the receipt on December 19, 2006, with respect to each real estate listed in attached Table 3’s list Nos. 9, 10, 15 through 17, 19, 20, 29, 29, 32 through 39, and 46 of the list of real estate.

I. Of the real estate listed in Article 9, 10, 15 through 17, 19, 20, 29, 32 through 39, and 46 of the list of the attached real estate in attached Table 3, the defendant Park Jong-○ shall carry out the procedure for each cancellation of the registration of the provisional right to claim partial transfer of ownership, which was completed as of August 30, 2007 as of the share in attached Table 3, the 11.84/1355.6, and the defendant Park Jong-○ shall carry out the procedure for each cancellation of the registration of the provisional right to claim partial transfer of ownership, which was completed as of August 30, 2007 as of the 951

(j) As to each real estate listed in attached Table 3’s list Nos. 9, 10, 15 through 17, 19, 20, 29, 32 through 39, and 46, Defendant Kim Jong-○ performed the procedure for the cancellation of each registration of the right to claim transfer of ownership, which was completed under the Head of Suwon District Court Branch of Suwon District Court No. 125094, Dec. 16, 201;

C. On September 6, 191, the registration of cancellation of each registration of initial ownership preservation, which was completed upon the request for provisional disposition registration on September 6, 1991, the defendant Republic of Korea expressed its intention of acceptance on each registration of cancellation of each registration of initial ownership preservation, which was completed upon the request for provisional disposition registration on each of the real estates listed in Section 11, 14, 18, 21, 24, 28

(l) On September 6, 191, 191, the defendant Lee Jong-○ declared that each registration of cancellation of ownership preservation, which was completed upon a request for provisional disposition registration, was accepted by the Suwon District Court for each registration of cancellation of ownership preservation, with respect to each of the real estate listed in Section 11, 13, 14, 21, and 24 of the list of the real estate listed in Annex III

(m) On September 6, 191, the defendant Han-○ declared that each registration of cancellation of ownership preservation, which was completed on September 6, 1991 due to the request for provisional disposition registration, was accepted on each registration of cancellation of ownership preservation, which was completed on each real estate listed in the list 11, 14, and 24 of the attached list 3 of real estate;

(n) Defendant Lee ○○, upon the request for a provisional disposition registration on September 6, 191, declared that each registration of cancellation of registration of initial ownership preservation, which was completed due to the request for a provisional disposition registration on September 6, 191, with respect to each real estate listed in Section 11, 14, 18, 21, 28, and 30 of the list of real estate listed in the annexed Table 3;

(o) On September 6, 191, the defendant ○○ City expressed his intention of acceptance for each registration of cancellation of each registration of preservation of ownership, which was completed due to a request for provisional disposition registration on September 6, 1991, with respect to each of the real estates listed in Section 11, 14, 18, 21, 24, 28, and 30 of the list of real estate listed in the annexed Table 3.

(p) On September 6, 191, Defendant ○○-gu declared that each registration of cancellation of ownership preservation, which was completed on September 6, 1991 due to the request for provisional disposition registration, was accepted by the Suwon District Court for each registration of cancellation of ownership preservation, with respect to the real estate listed in Section 11, 18, and 21 of the list of the real estate listed in

(q) Defendant Kim Jong-○ shall own each of the real properties listed in the separate sheet Nos. 11, 14, 21, and 24 of the separate sheet No. 3 on September 6, 1991 due to the entrustment of provisional disposition registration on September 6, 1991.

For each registration of cancellation of an authorized preservation registration, the declaration of acceptance shall be made;

(r) On September 6, 1991, Defendant ○○○○○ expressed his/her consent to each registration of cancellation of each registration of preservation of ownership, which was completed due to the request for provisional disposition registration, on each of the real estates listed in Section 24, 28, and 30 of the list of the attached real estate in attached Table 3,

(ss) Defendant Lee ○○ performed the procedure for registration of cancellation of the registration of establishment of a mortgage in the vicinity of the registration of establishment of a neighboring real estate completed on July 31, 1993 by Suwon District Court, Suwon District Court, Ansan District Court, 52806, which was completed on July 31, 1993 with respect to each real estate listed in Articles 18, 24, 28, and 30 of the List of Attached Property 3, and expressed his/her intention to accept each registration of cancellation upon a provisional disposition on September 6, 191, which was completed on September 6, 199;

(t) On April 13, 1992, the Defendant YOOO performed the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed under No. 21162 on April 13, 1992 with respect to the real estate listed in paragraph (18) of the attached Table 3’s list of real estate, and expressed his/her consent on September 6, 191 with respect to the registration of cancellation of the registration of the establishment of a mortgage completed due to the provisional disposition on September 6,

(u) Defendant Lee ○○ performed the registration procedure for cancellation of the registration of the establishment of a mortgage on each of the real estates listed in [Attachment 3] Nos. 28 and 30 in Suwon District Court of Suwon District on July 31, 1993, which was completed by No. 52806, Jun. 31, 1993;

(v) Defendant National Health Insurance Seongbuk branch office shall implement the registration procedure for cancellation of the registration of seizure completed under No. 3772, which was received on January 17, 201, with respect to the real estate listed in paragraph (9) of the attached Table 3 real estate list.

3. The plaintiff (appointed party)'s claims against the defendant Park Jong-young and the designated party's claims against the defendants are dismissed.

4. Of the litigation costs, the part arising between the Plaintiff (Appointed Party) and the Defendant Kim○○, and Park ○○ is borne by the Plaintiff (Appointed Party); the part arising between the Plaintiff (Appointed Party) and the remaining Defendants is borne by the designated parties; and the part arising between the designated parties and the Defendants is borne by the designated parties respectively.

Cheong-gu Office

1. For the Plaintiff (Appointed Party; hereinafter referred to as the “Plaintiff”) and the Appointor:

(a) As to each real estate listed in the list 1 through 8, 11 through 14, 18, 21 through 28, 30, 31, 40, 41, and 43 of the attached Table 3, the defendant Kim Jong-○ shall carry out each registration of preservation of ownership, each of which was completed upon a request for provisional disposition on September 6, 1991 by Suwon District Court, Suwon Branch of the attached Table 3, and the list 9, 10, 15 through 17, 19, 20, 29, 32 through 39, and 46 of the same list, each of which was completed upon a request for provisional disposition on December 4, 2006, and each of the registration procedures shall be cancelled after the receipt of each real estate listed in the list 42, 44, and 45 of the same list, each of which was completed on February 26, 2008.

B. As to the real estate listed in paragraph (1) of the attached Table 3’s list of real estate, Defendant Yellow ○○ performed each procedure for the cancellation of ownership transfer registration, which was completed on March 27, 1992 by the Suwon District Court No. 17456, Mar. 27, 192 with respect to the registration of ownership transfer, which was completed on March 27, 1992 by the same court No. 17457, as to the real estate listed in paragraph (2) of the same list, and as to the real estate listed in paragraph (3) of the same list, the procedure for the cancellation of ownership transfer registration, which was completed on March 27, 192

C. Defendant Han-○, as to each real estate listed in [Attachment 3’s list Nos. 1 through 3, performed the procedure for registration of cancellation of each transfer of ownership as to each of the registration of transfer of ownership, which was completed on December 26, 2006 by the Suwon District Court of Suwon-won Branch of the Suwon District Court of the Republic of Korea.

D. As to the real estate listed in paragraph (4) of the attached Table 3’s list of real estate, Defendant ○○ performed the procedure for registration of cancellation of ownership transfer registration, which was completed as No. 48717, Jul. 29, 1992 by Suwon District Court, Suwon District Court, Ansan Branch of Suwon District Court.

E. Defendant Lee Dong-○, Inc, performed the procedure for registration of cancellation of ownership transfer registration as of October 30, 1997, as of the real estate listed in paragraph (4) of the attached list No. 3, the Suwon District Court of Suwon District for the purpose of registration of cancellation of ownership transfer registration as of October 30, 1997, as of the real estate listed in paragraph (5) of the same list, the same court No. 136307, Oct. 30, 1997;

F. Defendant ○○○ performed the procedure for registration of cancellation of ownership transfer registration, which was completed on February 20, 1992, No. 10076, which was completed on February 20, 1992, with respect to the real estate listed in paragraph (5) of the attached Table 3’s list

G. Defendant Lee ○○ performed the procedure for registration of cancellation of ownership transfer registration, which was completed on February 14, 1992 by Suwon District Court Branch of Suwon District Court for the real estate listed in paragraph (6) of the attached list Nos. 3, 892, which was completed on February 14, 1992, and was completed on February 14, 1992 by No. 8893, which was completed on February 14, 1992.

H. As to the real estate listed in paragraph (8) of the attached Table 3’s list of real estate, the Defendant Gangnam-do shall implement the procedure for registration of cancellation of ownership transfer registration, which was completed as No. 48718, Jul. 29, 1992 by Suwon District Court, Suwon-do, Suwon District Court

I. Defendant Kim ○○ performed the procedure for registration of cancellation of each transfer of ownership, which was completed under No. 146157 of the receipt on December 19, 2006, as the Suwon District Court of Suwon District for each real estate listed in attached Table 3’s list Nos. 9, 10, 15 through 17, 19, 20, 29, 32 through 39, and 46.

(j) Of the real estate listed in Article 9, 10, 15 through 17, 19, 20, 29, 32 through 39, and 46 of the list of the attached real estate in attached Table 3, the defendant Park Jong-○ shall pay the share 1.84/1355.6, and with respect to the share 2.971/6/1355.6, each of the registration procedures for the cancellation of the provisional registration of the right to demand partial transfer of ownership completed on August 30, 2007 by the Suwon District Court of Suwon, Suwon District Court of the Republic of Korea (No. 95150) No. 95150

§ 20;

(k) Defendant Kim Jong-○ performed the procedure for the cancellation of each registration of the provisional right to claim ownership transfer, which was completed under No. 125094, Dec. 16, 201, by the Suwon District Court, Suwon District Court for the registration of the cancellation of each registration of the provisional right to claim ownership transfer, which was completed in accordance with No. 125094, Dec. 16, 201, with respect to each real estate listed in the list of the real estate listed in [Attachment 3].

(l) The defendant Republic of Korea expressed its intention of acceptance for each registration of cancellation of each of the registrations of initial ownership preservation upon the request for provisional disposition registration on September 6, 191, which was completed upon the request of the Suwon District Court for the registration of cancellation on September 6, 1991 with respect to each of the real estates listed in Section 11, 14, 18, 21, 24, 28, and 30 in

(m) On September 6, 191, 191, the Defendant Lee Jong-○ expressed his intention of acceptance for each registration of cancellation of each of the registrations of initial ownership preservation, which was completed upon a request for provisional disposition registration on each of the real estates listed in Section 11, 13, 14, 21, and 24 of the list of the real estates listed in attached Table 3.

(n) Defendant Han-○ expressed his/her intention to accept each registration of cancellation of each registration of ownership preservation, which was completed due to a request for provisional disposition registration on September 6, 191, on each of the real estates listed in [Attachment 3] Nos. 11, 14, and 24 in the list of real estates listed in [Attachment 3],

(o) On September 6, 191, the Suwon District Court rendered a declaration of consent to each registration of cancellation of each registration of preservation of ownership, which was completed upon the request for a provisional disposition registration on September 6, 1991, with respect to each real estate listed in Section 11, 14, 18, 21, 28, and 30 of the list of the attached real estate in attached Form 3;

(p) On September 6, 191, the defendant ○○○ expressed his/her intention of acceptance for each registration of cancellation of each registration of initial ownership preservation, which was completed due to the request for provisional disposition registration on September 6, 1991, with respect to each of the real estates listed in Section 11, 14, 18, 21, 24, 28, and 30 of the list of real estate listed in the annexed Table 3;

(q) The defendant ○○-gu expressed his/her intention to accept each of the registrations of the cancellation of each of the registrations of the preservation of ownership completed on September 6, 191 due to the request for provisional disposition registration on September 6, 191, with respect to each of the real estate listed in Section 11, 18, and 21 of the list of the real estate listed in the annexed

(r) On September 6, 191, Defendant Kim Jong-○ expressed his/her intention of acceptance for each registration of cancellation of each registration of initial ownership preservation, which was completed due to a request for provisional disposition registration on September 6, 1991, with respect to each of the real estate listed in [Attachment 3] Nos. 11, 14, 21, and 24 of the list of real estate in

s. Defendant Park Jong-○ expressed his/her intention to accept each registration of cancellation of each registration of ownership preservation, which was completed due to the request for provisional disposition registration on September 6, 191, with respect to each of the real property listed in [Attachment 3] Nos. 11, 14, and 24 in the list of the real property in [Attachment 3],

(t) On September 6, 1991, Defendant ○○○○ expressed his/her intention of consent to each registration of cancellation of each registration of preservation of ownership, which was completed due to the request for provisional disposition registration on September 6, 1991, with respect to each of the real estates listed in [Attachment 3] Nos. 24, 28, and 30 of the list of real estate

(u) Defendant Lee ○○ performed the registration procedure for cancellation of the registration of the establishment of a mortgage in the vicinity of the registration of establishment of a neighboring real estate completed on July 31, 1993 by the Suwon District Court, Suwon District Court, Ansan Branch, No. 52806, which was completed on July 31, 1993 with respect to each real estate listed in Articles 18, 24, 28, and 30 of the List of Attached Property 3, and expressed his/her intention of acceptance for each registration of cancellation of each registration of preservation of ownership completed on September 6, 191 by a provisional disposition being entrusted on September 6,

(v) Defendant YOOO performed the procedure for registration of cancellation of the registration of establishment of a neighboring mortgage registered on April 13, 192, which was completed on April 13, 1992 by the Suwon District Court, Suwon District Court, Ansan District Court, Ansan District Court, for the real estate listed in paragraph (18) of the list of the attached real estate in the attached Table 3, and expressed his/her consent for the registration of cancellation of registration of ownership preservation completed on September 6, 191 by the provisional disposition on September

(w) Defendant Lee ○○ performed the registration procedure for cancellation of the registration of the establishment of a mortgage on each of the real estates listed in [Attachment 3] Nos. 28 and 30 in Suwon District Court of Suwon District on July 31, 1993, which was completed by No. 52806, Jun. 31, 1993;

x. Defendant National Health Insurance Seongbuk branch will implement the registration procedure for cancellation of the registration of seizure completed under No. 3772 received on January 17, 201 with regard to the real estate listed in paragraph (9) of the attached Table 3’s real estate list as indicated in the attached Table 9.

2. As to the portion of 77,538.924/1,086,648.96 shares to the Plaintiff with respect to 77,538.924/1,086, 648.96 shares on the first floor of the land 781.8 square meters above 540-15, 540-15, 000

32,857.95/1,086,648.96 shares, with respect to the selected leap○○

For shares 71,971.58/1,086,648.96, to ○○○

With respect to shares 17,262.930/1,086,648.96 shares, ○○○.

24,323.78/1,086,648.96 Shares to the Selection○.

17,679.91/1,086,648.96 Shares, to the Appointor ○○

18,66.76/1,086,648.96 shares, to ○○○

For shares 19,56.31/1,086,648.96, each procedure for the registration of ownership transfer shall be implemented.

Reasons

1. Basic facts

(a) Conclusion of an exchange contract, construction of a building, and registration;

1) On August 1, 1986, Defendant Kim ○○, representing 30 co-owners of approximately 540-15 square meters and approximately 1355.6 square meters (hereinafter “the instant site”) and on the instant site, the above Defendant constructed a commercial building of the size of the first and the fifth floor above (hereinafter “the instant building”) at the expense of the above Defendant, and the first floor (excluding the part of the parking lot, and the parking lot of the first floor, the co-owners of the instant site were to have only the right to use) among the above co-owners, but in return, the above co-owners agreed to transfer 5/6 of each share of the instant site to the above Defendant (hereinafter “the instant exchange contract”).

2) around that time, Defendant Kim ○○ prepared an application for a building permit with the consent of co-owners of the instant site including the Plaintiff (hereinafter referred to as “Plaintiff, etc.”) to use the site and delegated the procedure for building permit to the architect design office. However, on the ground that the Plaintiff could infringe upon the rights and interests of the Plaintiff, etc., if the building permit with the sole name of Defendant Kim ○○, the Plaintiff voluntarily stated in the column of the applicant for the building permit that “the Plaintiff, etc., were the owner of the instant building,” and applied for the building permit with his seal affixed on the next side, and the ○○○○ market, upon receipt of the application for the building permit, deemed it lawful, deemed that the ○○○○○ market, which was the owner of the instant building, was the joint owner of the instant building on October 6, 1986.

3) After that, Defendant Kim ○, a joint owner of a project with the Plaintiff, etc., approved the name of the joint owner with the Plaintiff, etc., such as the report of commencement, application for design change and permit, application for interim inspection, and certificate of completion of inspection.

4) However, from June 198 to June 198, as agreed upon at the time of the instant exchange contract, Defendant Kim Jong-○ did not complete the construction work of the instant building and did not bear all the construction cost, resulting in a dispute between the Plaintiff, etc. and Defendant Kim Jong-○. During that process, Defendant Kim Jong-○, who was convicted of the Plaintiff, etc. on July 19, 191, submitted a report on change of name to the owner of the building, along with a conviction of the Plaintiff, who was found guilty on July 19, 191, and submitted a report on change of name to the owner of the building. The above report received ○○○○ Construction and the announcement of public officials, etc. forged the former communications (mail) facsimile under the name of the legal officer in charge of the Gyeonggi-do office, which was the following day after the completion of the construction work of the instant building and forged the title of the Plaintiff, etc., and changed the content of the original construction permit in the form of accepting it.

5) Accordingly, on September 6 of the same year after undergoing a completion inspection from the ○○○ mayor on August 20, 191, Defendant Kim○ issued a registration of preservation of ownership with respect to the instant building under the name of Defendant Kim○○○○ on September 6 of the same year (by subrogation of Kim Jae-), and each floor of the instant building is divided into the 1st underground floor and the outer wall of the 5th floor of the building, and has structural independence and independence in using the building. However, the 1st floor of the building was a general commercial building without any partitions, and the construction of the 1st floor was completed with the whole 1st floor as a space, and the 1st floor was separated into the 1st floor and the 2nd floor space of the building with the 1st floor space on condition that the 1st floor and the 1st floor space were removed if the stores were sold in most last, the 1st floor space was installed on the 4th floor part of the building, and the 16th floor space was installed on each 184th floor space.

6) However, the plaintiff filed a lawsuit against the ○○ market seeking the cancellation of the disposition on the change of the owner's name on July 20, 1991 against the Seoul High Court Decision 92Gu2716, which brought a lawsuit seeking the cancellation of the disposition on the change of the owner's name on July 20, 1991. However, on June 29, 1993, the Supreme Court (No. 92Nu17822), which was the final appeal, decided on June 29, 1993 that the defendant Kim ○ issued a building permit under the joint name with the plaintiff et al., and allowed it and recognized the plaintiff et al. as a joint owner as a joint owner. Accordingly, the decision of the court below was reversed to the effect that the change of the owner's name cannot be made without permission on the ground that the owner's name was changed, and that the case was remanded to the Seoul High Court, which became final and conclusive around February 17, 1994.

B. Progress of related civil procedure

1) Defendant Kim ○ filed a lawsuit against the Plaintiff and part of the co-owners of the instant site against the claim for the registration of transfer of ownership in accordance with the instant exchange contract, and the Plaintiff et al. also filed a counterclaim against the claim for the registration of transfer of ownership in relation to the first floor of the instant building. The appellate court, on the premise that the instant division is invalidated on March 12, 1996, under the premise that the ownership preservation registration becomes null and void, the Plaintiff et al.’s share in the instant site against Defendant Kim ○○ in relation to the Plaintiff et al.’s share in the instant site, on the premise that the ownership preservation registration becomes null and void, the lower court rendered a judgment ordering the Plaintiff et al.’s obligation for the registration of transfer and the registration of transfer according to their share ratio among the Plaintiff’s share in the instant building and the Plaintiff Kim Kim ○○’s share in the instant site, and the said judgment was finalized on April 15, 1996.

2) On July 9, 1997, the Plaintiff filed a lawsuit against Defendant Kim ○ and Gak ○○, along with the designated parties, seeking the implementation of the procedure for registration of cancellation of separate ownership preservation listed in the separate ownership preservation listed in [Attachment 3] list 109 through 146 among the separate ownership preservation listed in the Seoul District Court 94Gahap11525, and the said court rendered a favorable judgment against the Plaintiff, etc., and the said judgment became final and conclusive around that time.

3) Defendant Kim Jong-○ filed a lawsuit against the Plaintiff seeking the transfer of ownership of shares in the instant building site from Suwon District Court, Suwon District Court Branch Branching 2006Gadan24155, which was held on October 20, 2006, and on the conciliation date of the above court on October 20, 2006, “the Plaintiff” among the first floor of the instant building from Defendant Kim Jong-○.

At the same time, the conciliation was concluded that the registration of transfer of ownership of shares was completed on August 1, 1986, 38794.62/6519893.76, and that "it shall implement the procedure for the registration of transfer of ownership based on the exchange contract on August 1, 1986 with respect to the ownership of shares in this case to defendant Kim Jong-○."

4) The Plaintiff filed a lawsuit against Defendant Kim Jong-○ seeking the payment of land usage fees on the instant site as Suwon District Court’s Suwon District Court’s Suwon District Court’s Suwon Branch’s 2009Kadan13491, and on October 28, 2009, “Defendant Kim Kim-○ shall pay 3.8 million won to the Plaintiff by December 31, 2009: Provided, That where the above money is not paid by the payment date, the payment shall be made by adding 20% delay damages from the date following the payment date to the Plaintiff. The Plaintiff and Defendant Kim Kim-○ shall not raise any objection, such as civil litigation, in connection with the instant exchange contract concluded between the Plaintiff and Defendant Kim○-○ with respect to the instant site and the instant building.”

C. The present relationship between the Parties

1) Claim taking place, based on the registration of ownership preservation of the instant case, among the real estate listed in the separate sheet No. 3.

As described in the preceding paragraph with respect to each of the corresponding real estate described in the B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-P-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-P-B-B-P-B-B-S-B-B-B-O, ○○○, ○○○, ○○○, ○○○, ○○○, ○○○, ○○○, ○○○, ○○○, ○○○, ○○○, ○○○, ○○○○, ○○○, ○○○○, ○○○○, and ○○○○○, as stated in the same paragraph, each of the pertinent registrations in the name of Defendant title 2-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-B-C.

2) The Plaintiff and the designated parties are part of those who currently share the instant site.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6 (including relevant branch numbers), Eul evidence 1 and 2, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

Since each of the above stores located in the building of this case is merely a part of the building due to its structural stability and independence in its use, it cannot be the object of sectional ownership. Thus, the registration of preservation of ownership of this case, the registration of ownership transfer based on this case, and the registration of establishment of neighboring areas, etc.

Therefore, according to the exchange contract of this case, the plaintiff and the designated person who can preserve the jointly owned property as co-owners of the land of this case at the same time, and the defendant Kim ○○ has the duty to take procedures for the registration of ownership transfer according to the share ownership ratio, such as the procedure for the cancellation of registration of ownership of this case and the statement in paragraph 3 of the purport of the claim, and to cancel the registration of ownership transfer, etc. based on the share ownership registration of this case, and the remaining defendants have the duty to cancel the registration of ownership transfer, etc. of this case, or to express their consent to the cancellation of registration of ownership of this case.

B. The Defendants

1) Defendant Lee ○, and Lee ○○

A) In the case of Defendant Kim○-○ and the above case No. 2009Kadan13491, the Plaintiff brought a lawsuit against Defendant Kim○-○, which was rendered judgment against the Seoul High Court 2002Na23767, such as cancellation of registration of preservation of ownership of the instant case, and the said judgment became final and conclusive. Accordingly, the institution of the instant lawsuit is contrary to the agreement on the institution of the instant lawsuit, and is in violation of res judicata or the prohibition of double lawsuit, and is thus unlawful.

B) On August 1, 1986, the Plaintiff and the designated parties filed a claim for the registration of share ownership transfer against the first floor of the instant building with the lapse of ten years from the date of conclusion of the instant exchange contract, and the statute of limitations expired.

C) The designated parties, excluding the Plaintiff and their successors, were not parties to the instant exchange contract, and there is no right to claim the transfer of ownership, not the parties to the instant exchange contract.

D) As the Plaintiff and the designated parties had exercised their rights for a long period of time upon purchasing part of each of the stores on the first floor of the instant building for a period of more than 20 years, claiming the cancellation of registration of ownership preservation in the instant case is a violation of the good faith principle.

2) Defendant South Korea

A) The registration of preservation of ownership in the instant case is deemed to have the presumption of registration, and the seizure disposition by the above defendant is lawful.

B) On August 1, 1986, the right to claim the registration of ownership transfer of the Plaintiff and the designated parties had expired ten years after the date of conclusion of the instant exchange contract.

3) Defendant ○○-gu

A) The Plaintiff and Defendant Kim○-○ and the above 2009Kadan13491 agreed to bring an action against the Plaintiff.

B) The right to claim for the transfer registration of each share of the Plaintiff and the designated party ○○○○○ (hereinafter “Plaintiff”) extinguished by ten (10) years after the lapse of ten (197) years from the date when the lawsuit was concluded between Defendant Kim○ and Defendant Kim○). The right to claim for the transfer registration of each share of the remaining designated parties is a claim for the ownership,

3. Determination

A. Determination on Defendant Lee ○-○, Lee ○-○, and Gangnam-gu's principal safety defense

In Suwon District Court Decision 2009Gadan13491 decided Oct. 28, 2009, where conciliation was completed between the plaintiff and defendant Kim Jong-○, that "the plaintiff and defendant Kim Jong-○ shall not raise any objection, such as civil litigation, with respect to the instant exchange contract entered into between the plaintiff and defendant Kim Jong-○ with respect to the instant land and the instant building," the following facts are acknowledged: therefore, in the instant lawsuit raised by the plaintiff, the part against the plaintiff against the defendant Kim Jong-○, seeking the implementation of each of the procedures for registration of cancellation of ownership preservation of the instant division and the registration of ownership transfer of the first floor (excluding the parking lot part) of the instant building corresponding to the plaintiff's share, is unlawful against the above attached litigation agreement.

In this regard, the plaintiff filed the lawsuit in this case in order to execute the mediation protocol in the above case No. 2006da24155 for the purpose of executing the mediation protocol, and therefore, it does not go against the mediation protocol. However, the lawsuit in this case is a civil lawsuit in relation to the exchange contract in the above mediation protocol, which is agreed not to raise an objection, and thus, the institution of the lawsuit in this case goes against the above mediation agreement. Thus, the plaintiff's above assertion is without merit.

Therefore, the above defendants' defense of safety has merit.

B. Determination as to the Plaintiff’s claim against the Defendants other than Defendant Kim○○○

1) Determination as to the cause of claim

A) First of all, according to the evidence No. 4-11, 14, and 24, it can be acknowledged that the registration of the decision to commence compulsory auction on February 21, 2007, which was received by the court on July 3, 2008, was cancelled as the ruling of revocation of the above court on July 3, 2008, since the plaintiff's assertion as to the defendant Park Jong-○ is without merit.

B) Next, according to the facts acknowledged as follows, each shop of the 1st floor of the building of this case where Defendant Kim ○○ had completed the registration of preservation of ownership of the division of this case against the remaining Defendants except Defendant Kim○○ and Park Gam○, is merely a part of the building without any independence in its structure and use, which can be the object of divided ownership. Thus, the divided ownership right cannot exist. Even if this was registered for the purpose of divided ownership, it is not nonexistent or is different from the registration of the destroyed building. Thus, the division of this case is null and void, and it is reasonable to deem that the registration of preservation of ownership of this case is null and void, and that the registration of transfer, establishment registration of neighboring mortgage, provisional seizure registration, etc. of the remaining Defendants, which are based on the invalid

On the other hand, the Plaintiff, a co-owner of the instant site, is an act of preserving jointly-owned property relating to the instant site, and may seek the implementation of the procedure for registration of cancellation, such as transfer of ownership in the said Defendants’ name, which was based on the registration of cancellation of ownership transfer, or seek the declaration of consent for the registration of cancellation of ownership preservation in the instant case.

Therefore, the remaining Defendants, barring special circumstances, are obligated to perform the procedure for registration of cancellation on the registration of cancellation, etc. of their names based on the registration of cancellation, etc. of the ownership preservation of the division of this case to the Plaintiff, or to express their intent of acceptance on the registration of cancellation

2) Determination as to the defense of extinctive prescription by Defendant Lee-○, Lee-○, Korea, and ○○○.

However, as seen above, insofar as the Plaintiff’s act of preserving jointly-owned property based on ownership on the instant land was acknowledged, there is no room for applying the extinctive prescription as long as the claim against the said Defendants was accepted. Therefore, the aforementioned Defendants’ defense is without merit.

3) Determination as to the assertion of violation of the good faith principle by Defendant Lee ○○ and Lee ○○

Defendant ○○ and ○○○ alleged that the Plaintiff had exercised rights to some of the stores of the instant building for not less than 20 years. However, there is no evidence to acknowledge such assertion, and even if such fact is acknowledged, such circumstance alone does not lead to the conclusion that the Plaintiff’s assertion to cancel the registration of ownership preservation does not contravene the good faith principle. Therefore, the above Defendant’s assertion is without merit.

4) Sub-committee

Therefore, the remaining Defendants except Defendant Kim ○ and Park ○○ have a duty to implement the registration procedure for cancellation as to each of the pertinent real estate listed in the main text of paragraph (2) of the same Article to the Plaintiff, or to express their consent to the registration of cancellation.

C. Determination as to the claims by the designated parties against the Defendants

On August 1, 1986, the exchange contract of this case was concluded between 30 co-owners who owned the site of this case at the time of August 1, 1986 and the defendant Kim ○○. The designated parties can be seen to have been transferred a part of the share of the site of this case after around 1990. Thus, unless there is no evidence to acknowledge that the designated parties acquired the status of the party to the exchange contract of this case, the designated parties may not exercise the right to claim the transfer of share ownership against the defendant Kim ○○ (excluding the parking lot part) on the first floor of this case (excluding the parking lot part).

Therefore, the claim against the Defendants by the designated parties on different premise is without merit to examine further.

4. Conclusion

Therefore, among the lawsuit of this case, the part of the plaintiff's claim against the defendant Kim ○ is unlawful and dismissed. The plaintiff's claim against the defendants other than defendant Kim ○ and Park ○○ is accepted for reasonable grounds. The plaintiff's claim against the defendant Park ○ and the plaintiff's claim against the designated parties against the defendants are dismissed for reasons, and all of them are dismissed. It is so decided as per Disposition.