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(영문) 서울고법 1979. 7. 12. 선고 79나476 제6민사부판결 : 확정
[건물철거등청구사건][고집1979민,436]
Main Issues

Cases recognizing a claim for a building;

Summary of Judgment

After the termination of the lease contract period, the defendants own each building and the plaintiff want to renew the lease contract, so the contract has become effective as if the contract was concluded between the defendants and the defendant.

[Reference Provisions]

Article 643 of the Civil Act

Plaintiff, Appellant and Appellant

Lee Jae-ok et al.

Defendant, appellant and appellee

Maximum South and 3 others

Judgment of the lower court

Suwon Branch Court of Seoul District Court (77Gahap499) (Supreme Court Decision 77Gahap499)

Text

1. Of the original judgment, the part against the plaintiffs against the defendant Noh Ho and the same Lee Young-ok shall be revoked.

2. With respect to the plaintiffs, defendant Nohho-si: (a) from among the 1st floor of the 10th floor of the 1st floor of the 2nd floor of the 40th floor of the 1st floor of the 19th floor of the 2nd floor of the 100th floor of the 1st floor of the 40th floor of the 1st floor of the 2nd floor of the 10th floor of the 2nd floor of the 10th floor of the 10th floor of the 2nd floor of the 11st floor of the 11st floor of the ship connecting each of the 5th floor of the 1st floor of the 1st floor of the same building; and (b) Lee Young-ok-ok, the 11th floor of the 1st floor of the 1st floor of the same building, the 2nd floor of the 1st floor of the 2nd floor of the 1st floor of the building.

3. All appeals filed by the Defendants, such as each appeal filed against Defendant South and North Korea, and all appeals filed by the Defendants are dismissed.

4. Of the costs of lawsuit, the part arising between the plaintiffs and the defendant Noh, and the part arising between the Lee Young-ok and the same Lee Young-ok shall be borne by each of the appeals filed by both the first and the second instances.

5. The above paragraph 2 can be provisionally executed.

Purport of claim

The primary purport of the claim is to the plaintiffs, the defendant's highest right is to remove 8 square meters on board the ship which connects each point of 18 square meters of 1,00 square meters of 101-7, 101-3, 101-1, 101-6, 109-20 above 1, 109-1, 109-1, 109-1, 1, and 1,000 won of 1,000 square meters of 1,00 square meters of 1,00,000 won of 960,000 won of 20,00 won of 1,00 won of 1,00.

Defendant Nohhoe shall leave from 11 p.m. to 11 p.m. part of the causes on the ship connecting 109-21, 101-3, 101-3, 101-3, 3rd mentmen's sap and apap and 2nd 40 p.m. housing of 1st floor, 40 p.m., 5, 9, 8, 7, 76, and 5.

The defendant Lee Young-ok shall leave from 13 p.m. to 20 p.m., the same map indication on the first floor of the same building, 5, 6, 7, 8, 3 and 2.

피고 이호준은 같은 건물의 1층 건평 40평중 같은도면표시 ㄴ, ㅈ.ㅋ, ㄷ, ㄴ의 각 점을 순차로 연결한 선내의 ㉯, ㉰, ㉲부분 건평 25평과 2층 건평 10평을 철거하고, 그 대지부분을 인도하고, 금 3,000,000원과 1978.1.1부터 위 대지 인도시까지 월 금 62,500원의 비율에 의한 금원을 지급하라.

Costs of lawsuit shall be borne by the defendants, and provisional execution declaration

Preliminary Claim: For the plaintiffs, the defendant Lee Sung-gun-gun-gun-gun-gun-ro, 101-7, 101-3, 101-1, 101-6, 109-20, 109-20 of the same place, and 18 square meters in 18 square meters in 18 square meters in store for house, the defendant Lee Sung-gun-gun-gun-gun-gun-gun-gun-gun-si, the defendant Lee Sung-nam-gun-gun-gun-gun-gun-gun-si, and the part of the building as well as the registration procedure for transfer of ownership on the 8 square meters in order to connect each point of the above is implemented on the date of delivery and sale of the preparatory documents as of June 9, 1978.

피고 이호준은 같은곳 109의 21, 같은곳 101의 3, 지상 세멘부록조스라브즙 및 와즙 2층건 점포 주택 1동 1층 건평 40평중 같은 도면표시 ㄴ, ㅈ, ㅋ, ㄷ, ㄴ의 각 점을 순차로 연결한 선내의 ㉯, ㉰, ㉲부분 건평 25평과 2층 건평 10평에 관하여 1978.6.9자 준비서면 송달일자 매매를 원인으로 한 소유권이전등기절차를 이행하는 동시에 동 건물부분을 명도하라.

Costs of lawsuit shall be borne by the defendants, and provisional execution declaration

Purport of appeal

Plaintiffs: The same shall apply to the primary purport of the claim except for the revocation of the original judgment.

The defendants shall revoke the original judgment.

All the costs of lawsuit shall be borne by the plaintiffs in the first and second instances.

Reasons

1. First, we examine the plaintiffs' primary claims.

The facts that approximately 109-21 and approximately 25 square meters are owned by the plaintiffs, the highest south-gun owns the above 109-20, and the above 101-7 and 101-3, 101-1 and 101-6 of the same building site, such as the entry of the purport of the claim in the above 109-21 and the above 109-21 and the above 109-25 square meters are equal to that of the above 109-20, the above 109-20, the above 109-20, the above 101-7, the above 101-3, and the same 101-6, and the above 8 square meters of the above 109-21 and the above 101-3, the above 10-21 and the above 10-2, which are adjacent to the building site, can be acknowledged as possessing and using the above 1-2, the above purport of the appraisal by the plaintiffs.

However, the defendants asserted that they leased the above site from the plaintiffs, so if they combine the whole purport of the pleading with the above 109-20, 9-21 and 109-25 of the above 25-year lease contract with the above 105-year lease contract with the above 10-year lease contract with the above 10-year lease contract with the above 10-year lease contract with the above 105-20-20 of the above 10-7 lease contract with the above 9-17-7 lease contract with the above 9-7 lease contract with the above 10-7 lease contract with the above 9-20-7 lease contract with the above 9-7 lease contract with the above 10-year lease contract without any agreement with the above 1952.

Although the plaintiffs asserted that each of the above lease agreements was terminated by the termination of each termination of the defendant's highest south and the same heading unit around September 1974, the plaintiffs cannot accept the above lease agreement since it is difficult for the court below to believe that the results of the examination of the plaintiff Lee Jae-soo and the court below's examination of the plaintiff Lee Jae-won were not any other evidence to

The plaintiffs asserted that they had expressed their intent to terminate the above lease contract with the defendant Nam-nam on July 4, 1977 and the same headings. Accordingly, according to each of the evidence Nos. 5-1, 2, and 6-1, 6-2 (each highest letter and mail delivery certificate) of the evidence No. 5-1, 6-2 (each highest letter and mail delivery certificate) without dispute over the establishment, the plaintiffs sent a peremptory notice to the above headings by the plaintiffs on July 2, 197, and each of the above highest orders reached the above Defendants on July 4, 197, and it can be recognized that each of the above highest orders reached the above Defendants on July 4, 197, and there is no other counter-proof. Accordingly, each of the above highest orders between the plaintiffs and the above Defendants should be deemed to be a notice of termination of each lease contract. Accordingly, each of the lease contract between the plaintiffs was terminated due to the expiration of the period of time on January 4, 1978.

However, the defendant highest South-Nam and the above defendants asserted that when the above lease contract is terminated as a preparatory document dated December 9, 197, the renewal of the lease contract is requested pursuant to Article 643 of the Civil Act, and when the plaintiffs do not want the renewal of the contract, they cannot exercise the right to purchase each ground building and deliver the above site before receiving the payment from the plaintiffs. Thus, the lease contract between the plaintiffs and the above defendants terminated upon the expiration of the period of January 4, 1978. The above defendants already own each part of the building, such as the entry of the claim in the above site in the above site, as seen above, it is apparent by the purport of the pleading that the plaintiffs do not want the renewal of the contract. Thus, the contract between the plaintiffs and the above defendants was established by the exercise of the above defendants' right to purchase, and the above defendants have the right to retention as to the above site until they receive the purchase price from the plaintiffs.

The plaintiffs asserted that each part of the buildings constructed on the plaintiffs' own land is part of the building and is not the independent ownership. Thus, even if the buildings owned by the above defendants are constructed on the lands that are different from the plaintiffs' own land, it cannot be said that they cannot exercise the right to purchase the building portion constructed on the plaintiffs' own land unless there are special circumstances. Thus, the above plaintiffs' assertion is without merit.

Thus, the plaintiffs' primary claims based on the plaintiffs' illegal possession of the land owned by the defendant Kim Nam and Lee Dong-young are without merit. Meanwhile, the defendant Noh Ho-ok's assertion that they have the right to legally possess and use the land owned by the plaintiffs. It is not proved that they have the duty to leave from each part of the building owned by the plaintiffs.

2. We examine the plaintiffs' preliminary claims.

The plaintiffs and the above defendants have the same effect as a sales contract was established with respect to the part of the building in the purport of the claim constructed on the above land between the plaintiffs and the above defendants. According to the appraisal results by the number of expert appraisers at the court below's judgment, it can be acknowledged that the above defendants' highest ownership was 768,000 won at the time of the validity of the above defendants' purchase request, and that the ownership of the above defendants' highest ownership was 2,728,000 won at the time of the above defendants' purchase request, and there is no other counter-proof. Thus, the defendant Kim Nam-nam is obligated to implement the procedure for ownership transfer registration and order the above part of the building for purchase to the plaintiffs in return for payment of 768,000 won from the plaintiffs. Thus, the defendant Lee Jong-nam is obligated to obtain 2728,200 won from the plaintiffs and order the above part of the building to purchase the above part of the building.

Since the above defendants illegally occupied the above land owned by the plaintiffs from January 1, 1974, thereby causing damage equivalent to the rent to the above defendants, the plaintiffs' claim for compensation against the above defendants is asserted to the purport that this set-off is against the amount equal to the above purchase price payment obligation of the plaintiffs. However, the above defendants have occupied the above land owned by the plaintiffs based on a right of lease or a right of retention as seen in the plaintiffs' primary claim. Thus, the set-off objection against the above plaintiffs under the premise that the above defendants illegally occupied the above land owned by the plaintiffs cannot be accepted.

3. If so, the part against the plaintiffs against the defendant Noh Ho and Lee Young-ok among the original judgment with different conclusions is unfair, and the plaintiffs' appeal is reasonable, such part shall be revoked, and thus, the plaintiffs' claim shall be accepted. Each appeal against the defendant Kim Nam and the same defendant's appeal against the above defendants shall be dismissed without any ground. It is so decided as per Disposition by the application of Articles 95, 96, and 89, and Article 93 of the Civil Procedure Act with respect to the bearing of litigation costs.

Judges An associate (Presiding Judge)

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참조조문

- 민법 제643조 (위헌조문)

본문참조조문

- 민사소송법 제95조

- 민사소송법 제96조

- 민사소송법 제89조

- 민사소송법 제93조