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(영문) 대구고등법원 2015.04.29 2014나20777

소유권보존등기말소 등

Text

1. All appeals filed by the Plaintiff (Counterclaim Defendant) against the instant principal lawsuit and counterclaim are dismissed.

2. The costs of appeal shall be the principal lawsuit.

Reasons

1. The court of first instance accepted the Plaintiff’s claim for cancellation of registration of ownership preservation against the Defendant Republic of Korea and the claim for cancellation of registration of ownership transfer against the Defendant B from among the Plaintiff’s principal claim, dismissed each claim for restitution of unjust enrichment against the Defendants, and accepted Defendant B’s counterclaim against the Plaintiff.

Therefore, since only the plaintiff appealed against the part of the first instance judgment against the plaintiff, the scope of the judgment of this court is limited to the plaintiff's claim for return of unjust enrichment against the defendants and the counterclaim against the defendant B.

2. The reasons why this court should explain are the same as the corresponding part of the judgment of the court of first instance, and thus, citing it as it is by the main text of Article 420 of the Civil Procedure Act.

3. The part concerning the plaintiff's claim for restitution of unjust enrichment

A. According to the above facts of determination as to the cause of the claim, the G land in this case is presumed to be owned by the plaintiff. Thus, the defendants are obligated to return to the plaintiff the profit equivalent to the rent gained by occupying the above land, unless there are special circumstances.

B. Determination 1 on the Defendants’ assertion 1) The Defendants’ assertion C is a Cheongju-si director regardless of R in 1947 through 1949 at the time of residence, and sold the instant G land to the Cheongju-si D, and thereafter, the period of prescription for the acquisition of possession was completed by occupying the said land with the intention of ownership ownership for 20 years. As such, the Plaintiff cannot claim for the return of the above land possession interest against the Defendant, who succeeded to the status of the Defendant B and his/her status. (2) Upon the completion of the prescription for the judgment of real estate, the possessor may claim against the nominal owner for the implementation of the procedure for the registration of ownership transfer due to the completion of the acquisition by prescription, and the nominal owner is obligated to comply with it, even if the possessor fails to complete the registration of ownership transfer under his/her name, and thus