B. Defendant 2 Co., Ltd. shall leave the building listed in the attached Table 1 list.

2. All of the Plaintiff (Counterclaim Defendant)’s claim on the remainder of the principal lawsuit against the Defendant (Counterclaim Plaintiff) and the Defendant (Counterclaim Plaintiff)’s claim on the main and conjunctive counterclaim against the Defendant (Counterclaim Plaintiff) are dismissed.

3. Of the costs of lawsuit, the portion arising between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) and the Plaintiff (Counterclaim Plaintiff) share 30% of the total principal lawsuit and counterclaim, and 70% of the total amount is borne by the Plaintiff (Counterclaim Defendant), respectively, and the portion arising between the Plaintiff (Counterclaim Defendant) and the Defendant 2 is borne by the Defendant 2 Co., Ltd.

4. Paragraph 1 can be provisionally executed.

Counterclaim: In the first place, the Plaintiff confirms that there is superficies on each land listed in the separate sheet No. 2 attached hereto to Defendant 1 Co., Ltd.. In the second place, the Plaintiff will implement the registration procedure for creation of superficies for 30 years from January 2, 2002, with respect to each land listed in the separate sheet No. 2 attached hereto, with respect to each land listed in the separate sheet No. 2 attached hereto.

[Based on recognition] Facts that there is no dispute against Defendant 1 corporation, Gap evidence (including paper numbers), Gap evidence 2 (including paper numbers), Eul evidence 6, Eul evidence 11, Eul evidence 12, Eul evidence 14, Eul evidence 23, the purport of the whole pleadings, the confessions against Defendant 2 corporation

A. Acquisition of building permit by Nonparty 5

On February 190, Nonparty 5, the owner of each land listed in the attached Table 2 list (hereinafter “instant land”) obtained a construction permit from Busan Metropolitan City to construct an officetel building with the size of 2 underground and 9 floors above the ground level (a building constructed with the size of 2nd underground and 9 floors below the ground level) on each land listed in attached Table 2-5 of attached Table 2 from Busan Metropolitan City.

B. The construction process of the instant building by Nonparty 2

(1) On December 20, 190, Nonparty 2 purchased ten parcels including the instant land from Nonparty 5, and succeeded to Nonparty 5’s right to building permit. On December 29, 1990, Nonparty 2 created a collateral security (hereinafter “instant collateral security”) with ○ Bank on January 19, 191, after completing the registration of ownership transfer on the instant land.

(2) On February 13, 191, Nonparty 2 changed the name of the owner of the instant building, filed a commencement report on February 23, 1991, and continued construction until October 1997 after suspending construction due to the shortage of funds. At the time, 95% out of the total construction of the instant building was in progress, and the entire land of this case is being used as the site of the instant building.

C. Acquisition of ownership of the instant land by Nonparty 3

The non-party 3 corporation acquired the ownership of the land of this case on December 27, 2001 in the voluntary auction procedure conducted at the request of the Korea Asset Management Corporation to which the mortgage of this case was transferred ( Busan District Court Decision 2000 Tang31125, Busan District Court Branch Branch).

D. Acquisition of ownership of the building of this case by Defendant 1

Around December 2001, Defendant 1 Co., Ltd. acquired the right to the instant building from Nonparty 2 Co., Ltd., and changed the name of the owner of the instant building on December 28, 2001, and completed registration of preservation of ownership on July 3, 2007. Meanwhile, Defendant 2 Co., Ltd, by exercising the right of retention on the instant building.

E. Acquisition of ownership on the land of this case by the plaintiff

On May 3, 2002, Nonparty 3 Co., Ltd. created a right to collateral security on the instant land to Nonparty 6, 7, etc., and the Plaintiff acquired the ownership of the instant land on June 13, 2006 from the voluntary auction procedure ( Busan District Court Decision 2005Ma393, Busan District Court Decision 2005) upon request of the said mortgagee.

2. Judgment on the main claim and the defendant's defense

A. Determination as to the main claim

According to the above facts of recognition:

(1) Unless there are special circumstances, Defendant 1 Co., Ltd., the owner of the instant building, is obligated to remove the instant building and deliver the instant land to the Plaintiff, the owner of the instant land, and Defendant 2 Co., Ltd is obligated to leave the instant building.

(2) In addition, Defendant 1 Co., Ltd. is obligated to return unjust enrichment from the use of the site of the building of this case to the Plaintiff. Thus, the amount of unjust enrichment to be returned to Defendant 1 Co., Ltd. shall be the amount equivalent to the rent of the real estate in ordinary cases. According to the appraisal result, the rent of the land of this case, which is the site of the building of this case from June 22, 2006 to August 8, 2007, is KRW 83,793,00, and the rent of the land of this case, which is the site of the building of this case, from June 2, 2006 to August 2, 2007, as of June 22, 2007, it can be recognized that the rent of the land of this case was a monthly 6,399,000, and thereafter, the rent is confirmed to be the same amount. Ultimately, Defendant 1 Co., Ltd. is obligated to pay to the Plaintiff at the same rate of KRW 83793,000.

B. Determination on Defendant 1’s defense

As to the plaintiff's removal of the building of this case and the claim for delivery of the land of this case, the defendant 1 corporation has a defense as follows, and this is examined.

(1) Defenses of the right to use

Defendant 1, on April 26, 2004, asserted that he acquired a right to use the instant land from Nonparty 3 Co., Ltd., the former owner of the instant land. However, according to the evidence No. 10, Defendant 1, Co., Ltd.’s statement, it can only be acknowledged that the conciliation agreement was reached to pay KRW 3,323,106 per month to Nonparty 3 Co., Ltd. in unjust enrichment, and it cannot be deemed that Defendant 1 acquired a right to use the instant land that can be asserted against the Plaintiff with the above fact, and there is no other evidence to acknowledge it, and the aforementioned defense

(2) Defenses of statutory superficies

Defendant 1, at the time of establishing a right to collateral security with Nonparty 3 Co., Ltd., the former owner of the instant land, sought to purchase the instant land and building even if the former owner of the instant land and building were to be different, and the Plaintiff, who acquired ownership in the voluntary auction procedure at the request of the said mortgagee, knew of such circumstances, claimed that Defendant 1 Co., Ltd., the former owner of the instant land, bears legal superficies under Article 366 of the Civil Act.

On the other hand, the legal superficies under Article 366 of the Civil Act requires that land and buildings belong to the same owner at the time of establishing a mortgage, and on other premise, the above assertion by Defendant 1 corporation is without merit without examining the remaining points.

(3) Defenses of abuse of rights

Defendant 1 asserts that the removal of the Plaintiff’s building of this case and the request for the delivery of this case’s land are abuse of rights against the principle of good faith and thus, it is not permissible.

In other words, the following circumstances recognized by the evidence Nos. 2-6, 2-6, 7, 8, 11, 16-18, i.e., the appraisal price of the building of this case as of January 19, 2005, while the appraisal price of the building of this case is about 4.3 billion won, the Plaintiff acquired it at 1.6 billion won. ② Since the building of this case was composed of about 7 billion won, and approximately 95% of the total process was completed, a large number of stores of the building of this case were sold to the Plaintiff, and thus, most of the surrounding lands that can enter the land of this case were owned by Defendant 1 corporation, and thus, it constitutes an abuse of social and economic losses caused by the removal. ③ The Plaintiff’s claim for new construction of the building of this case was practically impossible, and the Plaintiff’s new construction of the building of this case and the Plaintiff’s new construction of the new building of this case, which is the owner of the new building of this case.

3. Determination on the counterclaim claim by Defendant 1 corporation

A. Claim for counterclaim by Defendant 1 Stock Company

(1) On February 1990, Nonparty 5, the former owner of the instant land, acquired a building permit for the instant building, and around that time, transferred all of the instant land and the instant building to Nonparty 2 Co., Ltd. on December 10, 1990 while constructing a temporary fence and a field office after starting construction work, and installing a underground floor construction.

(2) On January 19, 191, the establishment date of the instant right to collateral security, around January 19, 191, the construction of the underground floor part of the instant land was completed and the size and type of the instant building could be anticipated to be external shapes. Thus, in the auction procedure under the instant right to collateral security, the legal superficies under Article 366 of the Civil Act between Nonparty 3 and Nonparty 2, the owner of the instant building, is recognized.

(3) Therefore, the Plaintiff, the present owner of the instant land, sought confirmation from Defendant 1 Co., Ltd., who primarily acquired the instant building from Nonparty 2, that there was legal superficies under Article 366 of the Civil Act on the instant land, and in subrogation of Nonparty 2 Co., Ltd., the Plaintiff, the present owner of the instant land, sought the procedure to register the creation of legal superficies, such as the written claim, to Nonparty 2.

B. Determination

As seen earlier, in light of the fact that Nonparty 2 filed a report on the commencement of the instant building on February 23, 191, which was after the establishment registration of the instant building was completed, and that the date of commencement was written on February 18, 191 by the non-party 20, Eul’s evidence No. 19-1, Eul’s evidence No. 24, Eul’s evidence No. 27, and Nonparty 9’s testimony that was completed on January 19, 191, when the establishment registration of the instant building was completed, it is insufficient to recognize that the construction was completed to the extent that it could sufficiently anticipate the size and type of the instant building to be completed at the time of January 19, 191, and there is no other evidence to acknowledge this otherwise, and therefore, the assertion on the establishment of the statutory superficies of Defendant 1,

4. Conclusion

Therefore, the plaintiff's claim against the defendant 2 corporation is accepted for all reasons. The plaintiff's claim against the defendant 1 corporation for the principal lawsuit against the defendant 1 corporation is accepted within the above scope of recognition. The remaining principal claim is dismissed as it is without merit, and all of the counterclaim claims against the defendant 1 corporation are dismissed as it is without merit. It is so decided as per Disposition.

[List 1, 2 omitted]

Judges Kim Young-young (Presiding Judge)