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1. The defendant shall receive KRW 90,859,977 from the plaintiff and at the same time real estate stated in the attached Table from the plaintiff.
Reasons
1. Basic facts
A. On April 5, 2012, the Defendant entered into a lease agreement between C and C on a deposit of KRW 130 million (hereinafter “instant lease agreement”) with respect to the instant apartment that owned one-half shares of each of the instant apartment units.
B. On January 14, 2015, the procedure for commencing a compulsory auction (hereinafter “instant auction procedure”) was commenced on January 14, 2015 with respect to 1/2 of the shares of the instant apartment.
C. The Plaintiff was awarded 1/2 of D’s share at the instant auction procedure, and completed the registration of ownership transfer for 1/2 of the instant apartment on October 13, 2015 on the ground of sale by compulsory auction on October 13, 2015.
Meanwhile, in the instant auction procedure, the Defendant demanded the distribution of deposit of KRW 130 million as a lessee with a fixed date, but the Defendant received the dividend of KRW 29,140,023 on January 26, 2015 with the date when the fixed date was granted.
E. Since then C paid 10 million won out of the deposit to the Defendant.
F. The Defendant completed the move-in report on the instant apartment on April 13, 2012, and is currently residing until now.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 5, Eul evidence No. 1, the purport of the whole pleadings
2. Purport of the parties’ assertion;
A. The Defendant entered into the instant contract with C, a 1/2 equity right holder of the instant apartment that falls short of the majority of the Plaintiff, and D was concluded with the exclusion of D, and the Plaintiff acquired the instant auction procedure with respect to D’s share, so the Defendant cannot claim the use of and profits from the jointly owned property, and is obligated to deliver the instant apartment to the Plaintiff, according to the act of preserving the jointly owned property.
B. The date C attended the meeting to receive the remainder of the deposit for the apartment of this case and received the remainder from the standpoint of the lessor and the other lessor’s agents. After that, the Defendant occupied and used the apartment of this case as the lessee.