2017Da204247 Building Removal

Plaintiff

Law Firm LLC et al., Counsel for defendant-appellant

Attorneys Lee Jae-soo et al.

Defendant

Law Firm Doz.

[Defendant-Appellee]

Seoul High Court Decision 2016Na2031167 Decided December 13, 2016

July 8, 2021

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the assertion on statutory superficies (Ground of appeal No. 1)

The court below acknowledged on October 17, 1979 that the non-party owned the partitioned building of this case on which the right to collateral security was established on the partitioned building of this case, but the land of this case was owned by the non-party association, which is the implementer of the land readjustment project, and the non-party acquired the ownership of the dispute of this case on December 9, 1980, which is the next day from the public notice of the disposition of replotting. In order to establish the legal superficies under Article 366 of the Civil Act, the land and its ground buildings should be owned by the same person at the time of the establishment of mortgage, but the share of this case and the divided building of this case were not owned by the same person on the date of the creation of mortgage, and further, on the ground that the legal superficies under the customary law cannot be established if the land and building owners vary due to auction due to mortgage.

In light of the relevant legal principles and records, such judgment of the court below is just, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles on statutory superficies or statutory superficies under customary law, thereby affecting

2. As to the assertion that the removal of section of exclusive ownership is impossible (ground of appeal No. 2)

A sectional owner of a single aggregate building is to jointly occupy and use the entire site of a building by sectional ownership of that section of exclusive ownership (see, e.g., Supreme Court Decision 2012Da7670, Sept. 4, 2014). A site owner may seek removal of that section of exclusive ownership against the former sectional owner who owns a section of exclusive ownership without the right to use the site and occupies the site without the right to use the site (see, e.g., Supreme Court Decision 95Da40465, Nov. 29, 196).

An aggregate building is divided into several parts of the building (a building with independence in its structure and use) and is divided into two parts, and the building itself is constructed as a whole, and its entire building forms an integral part in its existence and maintenance. Therefore, it is practically impossible to remove or remove only some sections of exclusive ownership among one aggregate building. However, it is practically impossible to remove or remove the aggregate building by obtaining a decision or consent to remove each section of exclusive ownership and common use area from the whole sectional owners. However, it is possible to remove the aggregate building from the whole by obtaining a decision or consent to remove each section of exclusive ownership and common use area against the entire sectional owners, and such removal cannot be deemed an essential co-litigation that requires all sectional owners to jointly file a claim. Therefore, the circumstance that only a part of the exclusive ownership cannot be removed is merely an obstacle requirement for the commencement of execution, and does not constitute a reason to dismiss the claim for removal (see Supreme Court Decision 201

The court below acknowledged the fact that the defendant owned the partitioned building of this case without the right to use the site on the land of this case and the plaintiff owned the share in the dispute of this case corresponding to the site ownership of this case on the land of this case, and determined that the defendant is obligated to remove the partitioned building of this case to the plaintiff, and that the removal of this part cannot be physically impossible solely on the ground that the divided building of this case is on the second floor of the third floor of the apartment building of this case, and that this is merely a disability requirement for the commencement

Although it is inappropriate for the lower court to determine that only the instant partitioned building among the instant buildings is physically possible, the lower court’s conclusion, which received the Plaintiff’s request for removal, is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the right to demand removal of a building, contrary to what is alleged in the grounds of appeal.

3. As to the assertion on abuse of rights (Ground of appeal No. 3)

The owner of a site for an aggregate building may seek the removal of a section for exclusive use against a sectional owner who has no right to use the site, and even if the removal of a part of the section for exclusive use is practically impossible, it is merely a disability requirement for the commencement of execution, and thus, the claim by the owner of the building cannot be deemed an abuse of rights (see Supreme Court Decision 2010Da18447, Sept. 8, 201).

The court below held that the plaintiff's request for removal of the partitioned building of this case cannot be deemed to constitute a violation of the good faith principle or an abuse of rights. In light of the relevant legal principles and records, the court below's decision is acceptable, and contrary to the allegations in the grounds of appeal, there were no errors

4. As to the assertion on unjust enrichment (Ground of appeal No. 4)

The lower court calculated unjust enrichment to be returned by the Defendant as the amount equivalent to the rent for the area corresponding to the portion of the dispute in this case to be registered as the site ownership of the instant partitioned building on the basis of the state of site without any building, and ordered the Plaintiff to pay unjust enrichment from the date of acquisition of Plaintiff’s ownership until the completion date of delivery

In light of the relevant legal principles and records, such determination by the court below is justifiable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the requirements for future performance or method of calculating unjust enrichment.

5. Conclusion

Therefore, the appeal is 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 Jong-soo

Justices Lee Ki-taik

Justices Noh Tae-ok