[건물철거등][공1988.6.15.(826),947]
Whether or not a landowner who is illegally occupied by the construction of the said building may seek the removal of the unregistered building against the person who purchased and occupied it.
Since removal of a building constitutes a factual act that constitutes a final disposition of ownership, in principle, the owner of the building has the right to remove and dispose of the building. However, even if there is no registration title as the owner on the registry, a person who purchased and occupies the building is in a position to legally and factually dispose of the building occupied within the scope of the right, and therefore, the landowner who illegally occupies the building due to the construction of the building should be construed to have the right to seek removal from the building occupant in the position above.
Article 214 of the Civil Act
Supreme Court Decision 86Meu1751 Delivered on December 23, 1986
Plaintiff 1 and 2 others, Counsel for the defendant-appellant
Defendant-Appellee, Attorney Cho Chang-dong, Counsel for the defendant-appellant
Busan District Court Decision 85Na866 delivered on June 3, 1987
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The defendant's attorney's grounds of appeal are examined. (The grounds for supplement of the defendant's principal's appeal filed after the expiration of the submission period are limited to the extent of supplement in the above grounds of appeal)
Since removal of a building constitutes a factual act that constitutes a final disposition of ownership, in principle, the owner of the building has the right to remove and dispose of the building. However, even if there is no registration title as the owner on the registry, a person who purchased and occupies the building is in a position to legally and factually dispose of the building in possession within the scope of the right. Thus, the landowner who illegally occupies the building due to the construction of the building shall be construed to have the right to seek removal from the possessor of the building in such position (see Supreme Court Decision 86Meu1751, Dec. 23, 1986).
According to the records, the area of woodland 237,818 square meters is owned by the plaintiff, and each of the buildings of this case which were not constructed on the ground is purchased from the non-party ○○ Construction Co., Ltd. and possessed by the defendant (the fact that the building is owned by the defendant is not a dispute against the defendant, see the record 44 pages). Therefore, in this case where the defendant is not acknowledged to have a special title to own the building of this case on the above land, the defendant is obligated to remove the building and deliver the land to the plaintiff. Thus, the judgment below to the same purport is just, and there is no error of law such as incomplete trial or omission of judgment as pointed out the arguments.
Therefore, the appeal is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Choi Jae-ho (Presiding Justice)