부당이득금
Subject to any selective claims added by this Court, the judgment of the first instance shall be modified as follows:
The defendant.
1. Facts of recognition;
A. The instant land was owned by D, which was originally owned by the Defendant’s father, and the Defendant acquired the ownership of the said land following the agreement on the division of self-owned property on November 18, 2016.
With respect to the above land, a compulsory auction procedure was commenced on August 21, 2018, and the Plaintiff acquired the ownership of the above land on April 23, 2019 through the said compulsory auction procedure.
B. On the ground of the instant land, the following buildings exist (hereinafter “the instant building”). The instant building was originally owned D, and the Defendant acquired ownership through consultation on the division of self-owned property on November 18, 2016.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings
2. The plaintiff's claim and judgment
A. The Plaintiff is the owner of the instant land.
Since the Defendant owned the instant building on the ground of the instant land and thereby gaining unjust gains equivalent to the rent for the instant land, it is obligated to return to the Plaintiff money in proportion to KRW 5,416,600 (the portion from April 30, 2019 to September 26, 2019) and KRW 1,098,400 per month from September 27, 2019 to September 27, 2019 by the Defendant’s possession of the instant land.
Optionally, even if the Defendant acquired a commercial zone where the pertinent building was located for the purpose of owning it, the Defendant is obligated to pay to the Plaintiff money in proportion to KRW 5,416,60 as land rent for the instant land (the portion from April 30, 2019 to September 26, 2019) and KRW 1,098,40 as of September 27, 2019 to September 27, 2019 by the Defendant’s possession of the instant land.
B. Determination of the instant land and buildings were owned by the Defendant, but around April 23, 2019, the Plaintiff acquired ownership of the instant land through compulsory auction process, and thus, the land and the building owner were different. As such, the Defendant acquired a business district subject to suspension of law for the ownership of the instant building (Supreme Court Decision 2010Da5210 Decided October 18, 2012).