Plaintiff (Attorney Park Jong-type et al., Counsel for the plaintiff-appellant)

The relocation system (Law Firm International, Attorney Lee Sung-mun, Counsel for defendant-appellant)

September 21, 2012

Busan District Court Decision 2010 Ghana217350 Decided November 24, 2011

1. The portion of the judgment of the court of first instance against the plaintiff corresponding to the money ordered to be paid below shall be revoked. The defendant shall pay 10,712 won per month to the plaintiff from April 7, 2010 to the date of loss of the plaintiff's ownership or the end date of the defendant's possession.

2. The plaintiff's remaining appeal is dismissed.

3. 9/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff KRW 1,487,200 and KRW 112,703 per month from July 9, 2010 to the date of loss of the plaintiff's ownership or the end of the defendant's possession.

1. Facts of recognition;

A. On April 7, 2010, the Plaintiff purchased 115.025 shares of each land listed in attached Table 1 (hereinafter “each land of this case”) from Nonparty 2, respectively, and completed the registration of ownership transfer in the name of the Plaintiff on the same day.

B. The 15th floor neighborhood living facilities and apartment houses (hereinafter “instant condominiums”) were newly constructed on each land in the instant case, and registration of ownership preservation was made on February 23, 2006 with respect to each section of exclusive ownership on each of the instant land. At the time of the registration of ownership ownership was not completed, and the registration of ownership ownership has not been completed until the date of closing argument in the instant case.

C. On February 11, 2010, the Defendant purchased a building listed in attached Form 2 (hereinafter “instant aggregate building (hereinafter “instant aggregate building”) from the Jeju Investment System (hereinafter “the Jeju Investment System”) and completed the registration of ownership transfer in the name of the Defendant on February 12, 2010.

D. The Defendant owned each of the instant land by owning the instant aggregate building (water omitted), and the rent therefor is equivalent to KRW 112,703 per month.

[Ground of recognition] Unsatisfy, Gap evidence 2, 4, 5, 6 (including branch numbers in the case of provisional evidence), Eul evidence 1, the purport of the whole pleadings

2. Determination as to the cause of action

A. According to the above facts, the defendant owned each of the lands of this case by owning the condominiums of this case without any legal ground, thereby gaining profit equivalent to the rent of each of the lands of this case, and thereby giving damages equivalent to the plaintiff's share out of the above profits to the plaintiff. Thus, the defendant is obligated to pay to the plaintiff 10,712 won per month from April 7, 2010 where the plaintiff acquired 115.025 shares of each of the lands of this case from April 7, 2010 to the date of loss of the plaintiff's interest or the end of the defendant's possession (112,703 won equivalent to the rent of this case x 112,703 won x 115.025/1210.2 of the plaintiff's share x 115.

B. The Plaintiff asserts that the Defendant is obligated to pay to the Plaintiff the full amount of KRW 112,703 equivalent to the monthly rent.

In this case, since the defendant owned each of the lands of this case by owning the aggregate building of this case, the whole amount equivalent to 112,703 won for the above monthly rent to the owner of each of the lands of this case, and the owner of a part of each of the lands of this case is obligated to pay the part equivalent to the corresponding share out of the rent for the above month to the owner of a part of each of the lands of this case. However, as to the aggregate building of this case (No. 115.025 of the land of this case is registered as a site ownership, and the ownership of each of the lands of this case has been transferred to the plaintiff as the part of the above land was separated from the ownership of the above land, the relation between (No. 1. 5.25/1210 for the aggregate building of this case and the plaintiff's share of each of the lands of this case is recognized, the defendant is obligated to pay the whole amount equivalent to the above monthly rent of 12,703 won (see Supreme Court Decision 2008Da535408, May 208). 2008.

However, the entries in Gap evidence 2, 10 and Eul evidence Nos. 1 are insufficient to recognize that there is a mutual relationship between the above shares of the aggregate building of this case and the plaintiff 115.025/2 on each of the lands of this case. Since there is no other evidence to acknowledge it, the defendant is obligated to pay to the plaintiff 10,712 won per month equivalent to the above monthly rent of 115.025/1210 of the amount equivalent to the above monthly rent of 112,703 won, and there is no obligation to pay to the plaintiff the remaining rent of this case.

Therefore, there is no reason to seek more than KRW 10,712 per month among the plaintiff's claims.

3. Judgment on the defendant's defense

A. The defendant's assertion

1) Around 2006, the International University Development Co., Ltd. (hereinafter “UNFCCC”) owned each of the instant land and newly built the instant aggregate building on the ground. Accordingly, the UNFCCC acquired the sectional ownership of the instant aggregate building and the site ownership of each of the instant land.

2) On August 30, 2007, Nonparty 1 purchased the instant aggregate building (water omitted) from the International University Development and completed the registration of ownership transfer under the name of Nonparty 1 on September 11, 2007. Accordingly, Nonparty 1 acquired not only the ownership of the instant aggregate building (water omitted), but also the right to a site for each of the instant land.

3) On August 18, 2008, the foreign investment system purchased the instant aggregate building (water omitted) in a voluntary auction procedure ( Busan District Court Decision 2008Ma33657, May 20, 2009) with respect to the instant aggregate building (water omitted) and paid the purchase price on May 20, 209. Accordingly, the foreign investment system acquired the ownership of the instant aggregate building (water omitted) as well as the ownership of each of the instant land. As to each of the instant land on August 13, 2003, the collective investment scheme established the collective investment right for national bank, national bank, maximum debt amount of 2,080,000,000, and the debtor’s academic development, but the said auction extinguished not only the establishment on the instant aggregate building (water omitted) but also the portion on the right to a site of the instant aggregate building (water omitted) among the collective investment schemes established on each of the instant land.

4) On February 11, 2010, the Defendant purchased the instant aggregate building (water omitted) from the Jeju Port System and completed the registration of ownership transfer under the name of the Defendant on February 12, 2010. Accordingly, the Defendant acquired the ownership right as well as the ownership of the instant aggregate building (water omitted).

5) The non-party 2 purchased 115.025 shares of each of the lands of this case from the compulsory auction procedure of this case commenced on March 4, 2009 [the compulsory auction procedure of this case was initiated on May 28, 2009, Busan District Court 2009Hu9491, and thereafter, on May 28, 2009] (the compulsory auction procedure of this case was initiated on May 28, 2009) based on the right to collateral security (the Busan District Court 2009Ma24018) and conducted double auction], and paid a purchase price on March 31, 2010. However, on May 20, 209, the foreign auction system acquired the shares of this case in the voluntary auction procedure of this case as stated in paragraph (3) above, so even if the non-party 2 purchased shares of this case from each of the auction procedure of this case, it cannot be acquired the shares of this case.

6) On April 7, 2010, the Plaintiff purchased 115.025% of each of the instant lands from Nonparty 2 and completed the registration of ownership transfer under the name of the Plaintiff on the same day. However, unless Nonparty 2 did not acquire the said share ownership, the Plaintiff may not acquire it.

7) If the Plaintiff did not acquire 115.025 shares of each of the instant lands, and the Defendant acquired a site right on each of the instant lands, the Defendant did not have to return to the Plaintiff unjust enrichment on the said shares.

B. Determination

1) Even though it can be deemed that Non-party 1 acquired the right to use each of the lands of this case while purchasing the instant aggregate building (water omitted) from the International University Development on August 30, 2007 (see Supreme Court en banc Decision 98Da45652, 4569, Nov. 16, 2000, etc.), it cannot be deemed that he acquired the right to use each of the lands of this case as the ownership unless the right to a site has been registered as to the instant aggregate building (water omitted). In the voluntary auction procedure set forth in paragraph (a) of the above paragraph, it cannot be deemed that he acquired the right to use each of the lands of this case even if he acquired the right to use each of the lands of this case, and even if he can be deemed that he acquired the right to use each of the lands of this case. The same applies to the plaintiff who purchased the instant aggregate building (water omitted).

2) In the voluntary auction procedure set forth in paragraph (a)(3) above, insofar as the speculative system that purchased the instant aggregate building (water omitted) fails to acquire the right to a site for each of the instant land as an ownership, the right to a collateral security set forth in paragraph (a)(3) above cannot be deemed extinguished due to the above auction, and at the auction procedure set forth in paragraph (a)(5) above, Nonparty 2, who purchased the shares of 115.025/2 of each of the instant lands, cannot be said to have acquired the ownership of the said shares.

3) Therefore, the Plaintiff, who purchased 115.025 shares of the land of this case from Nonparty 2, effective ownership, and the Defendant cannot set up against the Plaintiff with the right to use each of the land of this case claimed by him. Therefore, the Plaintiff should return unjust enrichment with respect to the above shares to the Plaintiff.

4) Ultimately, the Defendant’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is partially unfair, the part against the plaintiff as to the money which recognized the defendant's obligation to pay is revoked and order the defendant to pay the above money, and the plaintiff's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition by the court of first instance.

[Attachment]

Judges Hatho (Presiding Judge) Kim Batho