Criteria for determining whether the existing building of the extension section complies with the existing building

It should be determined by examining not only the physical structure attached to the existing building, but also the economic utility independent from the existing building in terms of its use and function.

Article 256 of the Civil Act

Supreme Court Decision 85Meu246 delivered on November 22, 1985, Supreme Court Decision 87Meu600 delivered on February 23, 1988

[Judgment of the court below]

Defendant 1 and one other Defendants, Defendant 1 et al., Counsel for the defendant-appellant-appellee

Gwangju District Court Decision 86Na655,86Na656 decided Feb. 5, 198 (Consolidated)

All appeals are dismissed.

The costs of appeal shall be assessed against the defendants.

The defendants' attorney's grounds of appeal are examined.

1. The point of inconsistency between the order and the reasoning of the judgment

(1) The court below indicated in the decision of the court below that the building of this case was constructed on the lots of three lots of land at the time of leisure ( Address 1 omitted), ( Address 2 omitted), and ( Address 3 omitted), while the above ( Address 1 omitted) and ( Address 2 omitted) are already combined with the site on June 26, 1981 and did not exist as of June 26, 1981. However, according to the records, it is obvious that the above three lots of land are combined only on the land land and it is obvious that the merger registration on the register is not made on the register, so it is difficult to view that the site indication of the order of the court below is in accordance with the trademark at the time of the registration, and it is inconsistent with the theory of reasoning as in the theory of lawsuit.

(2) 원심이 피고들에게 명도를 명한 원심판결 별지도면표시 ㉰, ㉴부분 및 ㉯, ㉳부분은 기존건물부분인 여수시 (주소 1 생략), (주소 2 생략) 및 (주소 3 생략) 지상 철근콘크리트 슬래브지붕 영업소 및 주택 1동 1층 156.93m², 2층 164.83m²에 붙여 증축한 건물부분임에도 불구하고 원심판결 주문에서는 위 기존건물 중 일부인 것처럼 표시하고 있음은 소론 지적과 같으나, 이는 건물표시의 착오기재에 불과하고 명도부분은 별지도면표시에 의하여 특정되어 있으므로 판결결과에 영향이 없다.

(3) Ultimately, there is no reason to argue that the judgment of the court below is unlawful on the grounds of inconsistency with the above order of the judgment and the reasoning.

2. Legal principles at the time of determining whether to comply, and mistake of facts

The argument argues that the conformity of the extension portion of this case should be determined at the time of the extension of the building of this case, but the court below erred by misapprehending the legal principles at the time of determination as to the conformity with the situation at the time of extension, but examining the reasoning of the judgment below, it is difficult to determine the conformity only with the situation at the time of extension, such as the theory of lawsuit, and it is legitimate to recognize that the part of the building after extension was remodeled or modified was constructed after the dispute of this case disputing the conformity with the facility part of the building at the time of extension. Thus, the decision of the court below which did not include the standard of determination as to the conformity with the construction

3. The misapprehension of legal principles as to the conformity and independence of the building and the violation of the rules of evidence

Whether the extension portion of the existing building can be seen as a part of the building attached to the existing building or as an independent building shall be determined by considering not only the physical structure attached to the existing building, but also whether the extension portion can be an object of separate ownership in the transaction with independent economic utility from the existing building in terms of its use and function. According to the facts duly confirmed by the court below, the extension portion of the existing building in this case is consistent with the existing building in terms of its physical structure but also economic utility, and it seems that it is hard to be an object of separate ownership independently from the transaction. Thus, the decision of the court below that the extension portion of the existing building in this case is consistent with the existing building is just and there is no violation of the law of misunderstanding the legal principles as to the criteria for determining whether it conforms to the existing building, and the violation of the rules of evidence as to the independence

4. Therefore, all appeals are dismissed, 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 on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)