School Foundation (Law Firm LLC, Attorneys Kim Tae-tae et al., Counsel for the plaintiff-appellant)

○○ (Attorney Lee Young-soo, Counsel for the defendant-appellant)

April 7, 2016

Seoul Western District Court Decision 2014Gahap6015 Decided April 8, 2015

1. The plaintiff's appeal against the defendant (appointed party) is dismissed.

2. Of the judgment of the court of first instance, the part against the Plaintiff’s Appointor Nonparty 2 is modified as follows.

The plaintiff's claim against the non-party 2 is dismissed.

3. The costs of appeal arising between the Plaintiff and the Defendant (Appointeds) and the total costs of the lawsuit incurred between the Plaintiff and the Nonparty 2 are all borne by the Plaintiff.

The judgment of the court of first instance is revoked. The plaintiff is revoked. As to the share of 323/609 square meters among 609 square meters in the school site in Seodaemun-gu Seoul Special Metropolitan City ( parcel number 8 omitted), the defendant (appointed party; hereinafter "the defendant") ○○○ is the Seoul Western District Court: (1) the total share transfer registration completed on March 28, 2014 by 9910; (2) the selected Nonparty 3 is the entire share transfer registration completed on April 10, 2014 by 11757, which was completed on April 10, 2014 by the same court; (3) the Selection Nonparty 4 is the entire share transfer registration completed on May 7, 2014 by 14586, and (4) the entire share transfer registration completed on May 20, 2014 by 1731; and (5) the defendant ○○○ is the receipt of the entire share of Nonparty 2016.

1. Quotation of the first instance judgment

The reasoning for this Court’s reasoning is as follows, and this Court’s reasoning is identical to the reasoning of the judgment of the first instance except for the following dismissal or additional determination. Thus, this Court’s reasoning is cited pursuant to Article 420 of the Civil Procedure

2. Parts to be found either in height or in addition;

A. Paragraph 2-b.2 of Article 2(2) (from 8th to 17th 9th 4) shall be referred to below:

2) Whether the instant land is subject to the latter part of Article 55(2) of the Act on the Maintenance and Improvement of Urban Areas and the latter part of Article 42(1) of the Urban Development Act as the land secured by the authorities in recompense

The plaintiff's assertion on this part is premised on the premise that the land in this case is the land secured by the authorities in recompense for development outlay or reserved land. Article 2 of the former Urban Redevelopment Act (repealed by Act No. 6852, Dec. 30, 2002; hereinafter "former Urban Redevelopment Act"). Articles 6 and 7 of the Addenda of the above Urban Redevelopment Act provide that the redevelopment project being implemented with authorization for the implementation of the project under the former Urban Redevelopment Act shall be deemed an urban environment rearrangement project under the former Urban Redevelopment Act, but the project implementation method shall be prescribed by the former Urban Redevelopment Act, and Article 34 (1), (4) and (9), Articles 38 and 39 (2) of the same Act, Article 41 of the Enforcement Decree of the same Act (Article 2 of the Addenda of the Enforcement Decree of the Urban Development Act, No. 18044, Jun. 30, 2003) provides that the developer of the redevelopment project shall, in principle, set the land substitution plan as stipulated by the former Urban Development Project Act No. 20, and publicly announced 20.

According to the above provisions of the former Urban Redevelopment Act and the Urban Development Act, land secured by the authorities in recompense for development outlay, etc. is determined in advance in a land substitution plan or management and disposal plan, and the acquisition of ownership by the project implementer, etc. is determined only after the public announcement of land substitution disposition or the public announcement of sale disposition is required. Thus, the acquisition of land secured by the authorities in recompense for development outlay, etc., which is not determined in a land substitution plan or management and disposal plan, cannot be made. According to the evidence Nos. 8, 9, 21, and No. 5, the land of this case was not determined in advance in a land substitution plan or management and disposal plan. Rather, in full view of the purport of the whole arguments, the land of this case including the land of this case is divided into land substitution plan, road, facility green area, and road expansion

In addition, Article 55(1) of the Urban Improvement Act does not require the premise that a new land or a building substituted for the previous land or a building has been sold to the association members as a result of the implementation of an urban improvement project, but also applies to a case where the owner of a new land or a building substituted for the previous land or a building is the partnership and the new building becomes a reserved land or a land allotted by the authorities in recompense for development outlay (see Supreme Court Order 2013Ma325, May 6, 2013). Thus, as alleged by the Plaintiff, the instant land is subject to Article 55(1) of the Urban Improvement Act even if it is a land allotted by the authorities in recompense for development outlay or a reserved land that belongs to the non-party partnership,

B. The 10th to 13th of the 10th page “the Plaintiff’s above assertion shall not be accepted” and the 10th of the 10th page is as follows.

Article 140 of the Civil Execution Act provides that "If the auction procedure for a part of the real estate is in progress, co-owners may report the preferential purchase of the debtor's share at the same price as the highest bid price by the date of sale, and the auction procedure without such decision should have been re-designated so that the plaintiff may exercise the preferential purchase right, the sale procedure conducted without such decision shall be null and void. However, Article 140 of the Civil Execution Act provides that co-owners may report the preferential purchase of the debtor's share at the same price as the highest bid price by the date of sale, and the fact that the sale date of the land in this case was on July 11, 2006 is obvious to this court. Thus, unless there is no evidence to prove that the plaintiff was the co-owners of the land in this case by July 11, 2006, the sale date of the land in this case, the above assertion is without merit)."

(c) add the following judgments to the 10th page 13:

5) As to the acquisition shares by Defendant ○○○

The plaintiff asserts that although the decision to commence the sale of the previous three parcels of this case was transferred to the land of this case as alleged by the defendant ○○○○, the previous three parcels of this case should be calculated in accordance with the management disposition plan and the transfer notification of the non-party association. Since the defendant ○○ can acquire shares of 82.68/609 out of the land of this case, it is only possible to acquire shares of 82.68/609 out of the land of this case. Thus, the transfer registration of shares completed by the defendant ○○○○○ on March 28, 2014 as to 323/609 out of the land of this case is invalid within the scope exceeding 82.68/609 shares.

In full view of the above evidence and evidence Nos. 4-1, 2, 5, and 24, the Plaintiff agreed to sell and purchase the land of this case as seen earlier between the non-party union and the non-party union on April 28, 2005 to secure a site for expansion of △△ University △△△△ University 609 square meters (the relevant land area and location map specified as a drawing). The Plaintiff entered into a voluntary adjustment in the case of Seoul Western District Court 2004Kadan5722, which is the same as the above agreement, with the Plaintiff and the non-party union as the land subject to purchase and sale of this case. In full view of the following facts, the Plaintiff’s land size and size of the land of this case as well as the land to be purchased and sold within 41 square meters (number 2 omitted), 73 square meters (number 3 omitted), 209 square meters, 209 square meters as above, and the land size and size of the land to be purchased and sold within △△△△△△ University.

Therefore, among the previous three parcels of this case that Defendant ○○○ acquired through auction, the area included in the instant land shall be deemed to be 41 square meters in each (number 2 omitted), 41 square meters in each (number 3 omitted), 73 square meters in each (number 3 omitted), and 209 square meters in each (number 4 omitted). Therefore, the Plaintiff’s assertion on a different premise is without merit.

6) As to the Plaintiff’s assertion on the completion of the statute of limitations

The plaintiff asserts that since he possessed the land of this case in good faith from September 1994 in good faith and openly, he acquired ownership by completion of the prescription period for acquiring possession of the land of this case.

In a case where the transfer of ownership is registered under another person’s name in the possession of one’s own real estate, the possession of one’s own real estate cannot be deemed as the possession on the basis of the acquisition by prescription. Since the possession is commenced only when there is a change in the ownership, the starting point of the acquisition by prescription shall be the date of change in ownership, namely, the seal on which the transfer of ownership has been completed (see Supreme Court Decision 96Da55860, Mar. 14, 1997). Even if the Plaintiff occupied and used the instant land from September 14, 1994 upon the Plaintiff’s assertion, the Plaintiff completed the transfer registration of ownership on the instant land from October 23, 2006, which was the expiration date of the acquisition by prescription, at least since the Plaintiff completed the transfer registration of ownership on the instant land under one’s own name, it cannot be deemed as the possession on the basis of the acquisition by prescription. From March 28, 2014, Defendant ○○○ on the date of transfer of ownership.

3. Conclusion

Therefore, the plaintiff's claim against the defendant ○○ and the designated parties shall be dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is just in its conclusion, the appeal of this case against the defendant ○○ and the designated parties shall be dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Chang-sik (Presiding Judge)

(1) According to the evidence No. 6, the non-party association is recognized as having received authorization to implement the Urban Redevelopment Act at the time of enforcement.

(2) Article 28 (Preparation of Land Substitution Plan) (1) In order to implement all or part of an urban development project by replotting method, an implementer shall prepare a land substitution plan including the following matters. 1. 2. Land substitution design; 3. Details of land subject to liquidation by lot and right; 4. Details of land subject to development recompense land or reserved land (hereinafter omitted) under Article 34; 4. 5. Matters necessary for the standards for a land substitution plan in preparation of a land substitution plan under paragraph (1), standards for the determination of reserved land and public facilities, etc. may be prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport. 1. Article 29 (Authorization, etc. of Land Substitution Plan)

3) According to the management and disposal plan of the non-party association, the land in this case was divided into a lot number 2 omitted, (number 9 omitted), (number 5 omitted), (number 3 omitted), (number 4 omitted), (number 4 omitted), (number 11 omitted), and (number 176 omitted, (number 12 omitted), (number 12 omitted), and (number 4m number 16m number 16m number, (number 13 omitted), and (number 16m number 16m number, and (number 13 omitted) and the land substitution (609m number). As such, there is no specific land substitution area of the remaining land excluding the land in which the area was specified (number 11 omitted), among the 609m number of the land in this case, the remaining land area of 413m number (number 5 omitted - 176m number - 284m number - 284m number of the previous land.