Plaintiff

Defendant 1 and one other

May 20, 2009

Suwon District Court Decision 2007Da31340 Decided November 21, 2008

1. Revocation of a judgment of the first instance;

2. The plaintiff's claims against the defendants are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant 1 shall pay to the plaintiff an amount of 334,736 won per month from October 1, 2007 to the date of the plaintiff's loss of ownership or the date of the above defendant's completion of possession of the above land as to the 1/9 share of 5,735,157 won and the 1/9 share of the above land from October 1, 2007 to the date of the above defendant's loss of ownership or the date of the above defendant's possession of the above land. The defendant 2 shall pay the amount of 25,263 won per month from October 1, 207 to the date of the plaintiff's loss of ownership of 1/9 share of the above land or from the date of the above defendant's completion of possession of the above land.

2. Purport of appeal

The same shall apply to the order.

The Plaintiff asserted that the Defendants had a duty to return unjust enrichment equivalent to the rent corresponding to the Plaintiff’s share inasmuch as the Plaintiff, who is a right holder, suffered losses from the Plaintiff’s use and profit-making of the said land by exclusively occupying and using the said land on the ground of the instant claim, as the Defendants owned the building on the ground of the instant claim.

In full view of the overall purport of the pleadings in light of the statement No. 1-2, No. 1-2, Gap evidence No. 3-1-5, each video of the court of first instance as appraiser No. 6 (including the fact that there is no dispute between the parties concerned), and the overall purport of the pleadings with the court of first instance as appraiser No. 1, 2, 1, 2, and 3 acquired shares in the land listed in the annexed Table No. 1 (hereinafter “instant land”) from 1976 to 19, 29, 3/9, 1/9, 2/9, each of the above land during the voluntary auction procedure on March 16, 2006, the plaintiff acquired shares in 1/9 of the above land among the above land, and the defendants acquired shares in 21/2 of the attached list No. 2 (hereinafter “the building of this case”) on the land of this case from around 1987 to 53/57, 201 and the above shares in the land owned by the defendant No.251-27

On the other hand, if some of the co-owners occupy and use exclusively without the consent of a majority of shares as to the specific method of use and profit-making of the co-owners, it shall be deemed that the other co-owners make unjust enrichment corresponding to their shares (see Supreme Court Decision 2006Da49307, 49314, Nov. 24, 2006). However, there is no room for establishing unjust enrichment if there are special circumstances such as that the use and profit-making of the co-owners would result in a resolution of a majority of co-ownership shares, and further, the special agreement on use and profit-making of and profit-making from the co-owners shall be naturally succeeded to the specific successor of the co-owners (see Supreme Court Decision 2005Da1827, May 12, 2005).

According to the records, the defendants who became co-owners of the land of this case due to the death of the deceased non-party 4 and the non-party 1, 2, and 3 belong to the defendants, and the defendants can recognize that they made a special agreement on the use and profit-making and management of the land of this case, which is co-owned property, with the purport that the land part of the building of this case can be occupied and used free of charge for the purpose of owning and using the building of this case. The plaintiff acquired shares 1/9 of the non-party 2 as seen above. Thus, there is no room for establishing unjust enrichment on the grounds that the defendants' use and profit-making of the land of this case is caused by the agreement of the majority other than the plaintiff who is merely the non-party 1/9 share holder, and the special agreement between the above co-owners is succeeded to the plaintiff, which is the specific successor of the non-party 2's share. Thus, the defendants' possession and use of the land of this case is based on a special agreement between co-owners, and it cannot be deemed as possession

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be revoked differently, and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.

[Attachment of List]

judge last head of the (Presiding Judge) Lee-hee