Plaintiff 1 and one other (Law Firm LLC, Attorneys Kim Yong-woo et al., Counsel for the plaintiff-appellant)

Defendant 1 and three others (Law Firm Tae, Attorneys Park Jong-ho et al., Counsel for the defendant-appellant)

March 22, 2018

Seoul Central District Court Decision 2016Da5030848 Decided February 6, 2017

1. Revocation of the first instance judgment.

2. For the plaintiffs:

A. Of the real estate listed in the attached Table 1 list, Defendant 1 shall also have the 28th floor of the attached Table 2, among the real estate indicated in the attached Table 1 list (trade name: ○○

B. Of the real estate listed in the attached Table 1 list, Defendant 2: 67 of the attached Table 2 internal structure on the 2nd floor (mutually: 7th), the part on the attached Table 1

C. Of the real estate listed in the attached Table 1 list, Defendant 3 also indicated the attached Form 2 internal structure No. 68 of the 2nd floor on the 2nd floor (trade name: ▽▽▽”)

라. 피고 4는 별지 1 목록 기재 부동산 중 별지 2 내부구조도 표시 2층 70호(상호:◎◎◎◎) 부분을

India, respectively.

3. The total costs of the lawsuit shall be borne by the Defendants.

4. Paragraph 2 can be provisionally executed.

As indicated in the Disposition Nos. 1 and 2 (The plaintiff filed a request against the defendants for the extradition based on ownership in the first instance court, and then the court filed a request for the extradition based on ownership in this case, and first, as a majority right holder, the request for extradition based on ownership was made as a primary claim, and later, as a co-owned share holder, was added to the preliminary claim for the extradition

1. Basic facts

A. Registration of the building of this case

1) In mid-gu Seoul Special Metropolitan City (number 1 omitted), (number 1 omitted), (number 2 omitted), (number 3 omitted), (number 4 omitted), (number 5 omitted), (number 6 omitted), (number 7 omitted), (number 7 omitted), (number 8 omitted), (number 9 omitted), (number 10 omitted), (number 11 omitted), (number 12 omitted), (number 13 omitted), (number 14 omitted), (number 14 omitted, (number 15 omitted), (number 16 omitted, (number 16 omitted) and (number 15 omitted on the ground of 15 lots totaling 15.

2) The real estate listed in the separate sheet No. 1 list (hereinafter “the instant building”) is part of the building on Dog Agreement, and is registered as a separate sectional ownership on the aggregate building ledger. The real estate register also is registered as the sectional ownership of the building.

B. Disconformity between the registration of the instant building and its current status

1) A building on Dogsung was completed on October 30, 1958, and was determined as a dangerous building and an defective building as a result of structural safety inspection conducted on May 2002, and was ordered by the Seoul Special Metropolitan City and Jung-gu office to reinforce the building. Accordingly, the building repair and remodelling project (hereinafter “instant remodeling”) conducted from May 2005 to June 2006 is the structure of reinforced concrete from the structure of reinforced concrete, ② the number of floors from the structure of reinforced concrete, ② the number of floors from the structure of reinforced concrete, ② the number of floors from the second floor, ③ the area of the first floor and the second floor from the 2nd 702.75 square meters from the 1st 2nd 702.75 square meters to the 925 square meters, three floors, and the 524.1 square meters, respectively.

2) However, even after completion due to the lack of approval from the competent authorities for the use of the instant building even after completion, the registration for change of indication and the registration for change of indication in the public record following the instant remodeling was not made. As a result, the building ledger and the registration for each of the 15 buildings registered as the sectional ownership of each of the 15 buildings registered as the sectional ownership of the instant building are not properly reflected in the current building.

C. Ownership of the instant building

1) Sale by voluntary auction on June 7, 2010

A) At the time of the instant remodeling, Nonparty 1 owned Nonparty 1’s ownership at the time of the instant remodeling, and Nonparty 1 owned the (number 6 omitted) share of 14.7/29 of the instant land among each of the instant lands with the share of the site of the instant building. As to the instant building and the share of the said site, the establishment registration was completed on May 15, 201 by Nonparty 1, the mortgagee 1, the mortgagee 1, the Saemaul Bank of Korea, the maximum debt amount of KRW 560,000,000, and the establishment registration was completed on April 16, 2005, with regard to the establishment registration of a mortgage at KRW 360,000.

B) Nonparty 2 filed an application for voluntary auction on the instant building and the entire share of the said site on April 2, 2009 upon filing an application for a voluntary auction on the said building and the said share of the said site, and the auction procedure was conducted on April 2, 2009. Nonparty 3 purchased the instant building and the shares of the said site on June 7, 2010, and acquired ownership by paying the proceeds therefrom in full.

C) However, as seen earlier, depending on the public record of the building of this case and the actual status, the actual part of the building of this case was different from that of the building of this case through the survey and appraisal procedures of real estate status in the above auction procedure, the actual part of the building of this case was determined as follows: (a) △△ 203, 204, 207, 276, and 276 among the first floor of the building of this case; and (b) △ 2 inside structure of the second floor of the building of this case was determined as indicated in △ 28, 67, 68, and 70 among the second floor of the building of this case; and (c) based thereon, the auction procedure was

D) Accordingly, Nonparty 3 leased the entire 28th floor, which was one of the above stores specified as the actual parts of the building of this case, to Nonparty 4 on September 7, 2010.

2) On April 10, 2012

A) On April 10, 2012, Nonparty 3 sold the entire share of the instant building and the instant site to Nonparty 5, and completed the registration of ownership transfer on April 12, 2012 to Nonparty 5. The terms and conditions of the said sales contract on the instant building and the part of the said site between Nonparty 3 and Nonparty 5 include the following: “The seller confirms that the instant building was 203, 204, 207, 206, 276, 30 out of the first floor of the instant building and 30, 28, 67, 68, and 70 out of the second floor of the building.”

B) Meanwhile, Nonparty 3, on April 10, 2012, on the instant building and the share of the said site, on the grounds of a mortgage contract signed on April 10, 2012, Nonparty 3 completed the registration of the establishment of a neighboring mortgage amounting to KRW 600,000, the debtor, Nonparty 5, Nonparty 3, and the maximum debt amount.

3) Trading on April 9, 2013 and July 18, 2014

A) On April 9, 2013, Nonparty 6 purchased 16.57/62.42 shares among the instant building from Nonparty 5 and 3.9/29 shares of the said site among 14.7/29, and completed the registration of transfer of shares on April 10, 2013. On July 18, 2014, Nonparty 6 purchased 45.85/62.42 shares of the instant building and 10.8/29 shares of the said site and completed the registration of transfer on July 23, 2014.

B) On January 16, 2014, Nonparty 3 filed an application for voluntary auction on the basis of the foregoing right to collateral security, and on January 16, 2014, Nonparty 3 filed an application for voluntary auction at Seoul Central District Court around 2014ta1868 with respect to the entire shares of the instant building and the instant site (at this time, the share of the building and the instant site was owned jointly by Nonparty 5 and Nonparty 6, and became owned solely by Nonparty 6 during the auction procedure). Accordingly, the said court rendered a decision to commence auction on January 16, 2014 and conducted the auction procedure (hereinafter “instant auction procedure”). On January 30, 2015, the Plaintiffs jointly acquired each of the instant building and the instant site shares by jointly purchasing the entire shares of the instant building and paying the proceeds therefrom in full.

C) On the other hand, as seen earlier, depending on the public record of the instant building and the actual state of the instant building, the actual part of the instant building is different from that of the instant auction procedure, through the survey and appraisal of real estate status, etc., the entire share of the instant building and the instant land was sold to the Plaintiffs, as the instant building and the instant land share was sold to the Plaintiffs, by specifying the actual part of the instant building as the number of floors 203, 204, 207, and 276 among the first floor of the instant building, and the second floor as the attached Table 28, 67, 68, and 70 among the second floor of the instant building as the attached Table 2, 28, 67, 68, and 70 (hereinafter referred to as the “each of the instant stores,” referring to the number of stores 28, 67, 68, and 70; each store is specified as the number of houses).

4) On January 30, 2015

A) On January 30, 2015, the Plaintiffs concluded each sales contract with Nonparty 7, with the content that part of the store and the shares of the said site, one of the instant stores, and that part of the store and the shares of the said site, one of the instant stores, was sold to Nonparty 8 in KRW 530,000,000, respectively.

B) After that, Nonparty 7 and Nonparty 8 asserted that each of the above sales contracts was rescinded on the grounds that the Plaintiffs failed to perform their duty to deliver the stores of 67 or 28, and filed a lawsuit against the Plaintiffs for the refund of the purchase price under Seoul Central District Court 2015Gahap581327. The above court rendered a judgment in favor of Nonparty 7 and Nonparty 8 on the ground that the Plaintiffs’ application for the order to deliver real estate against the existing lessees of each of the instant stores was dismissed, on July 22, 2016, based on the premise that the instant building was made at each of the instant stores of 203, 204, 207, 206, and 276, respectively, on the ground that the Plaintiffs’ application for the order to deliver real estate against the existing lessees of each of the instant stores was dismissed, and that each of the above sales contracts was rescinded, the above judgment became final and conclusive at that time.

(d) A propane association of a building on Dogsung; and

On the other hand, before 1986, △△△△△△△ was established at ○○○ City △△△△△△ Branch (hereinafter “the instant prop group”). The articles of incorporation of the instant prop group stipulate that the owner of each sectional owner of the building and the owner of each site share of the building (hereinafter “△△△△”) shall be the member, who was a member of △△△△△△△△△△△△△△△△ Group.

E. Confirmation of the fact of the chairman of the Propup Association in this case

1) On February 14, 2014, Nonparty 9, at the time of the instant auction procedure, at the time of Nonparty 9, who was the chairman of the instant props meeting, prepared a written confirmation that “(the owner of the instant building),” with respect to the specific location of the instant building, exercise of property rights on each of the instant stores and each of the instant stores, and confirm that “(the owner of the instant building), is exercising property rights on the first floor, is entering into a contract with the said specific housing unit, and is remitting to the props upon receiving the rent.”

2) around October 2015, Nonparty 9: (a) around October 2015, Nonparty 1 and the second floor of the building 1 and the second floor of the instant building are exercising property rights by each unit of housing; (b) the stores of the first floor and the first floor 203, 204, 207, and 276 of the first floor sold on January 2015 were exercising property rights as the above unit of housing; and (c) not only the sale between individuals but also the court’s auction can legally acquire the ownership of each unit of housing. The principal, as the president of the instant propup group, prepared a written confirmation that “The Plaintiffs, the owners of the instant building, who were the owners of the instant housing, shall be approved to seek real estate name from the court for each unit of housing.”

F. Possession of each of the instant stores

이 사건 각 점포 중, 피고 1은 28호(상호 : ◇◇◇◇) 부분을, 피고 2는 67호(상호 : ☆☆☆) 부분을, 피고 3은 68호(상호 : ▽▽▽) 부분을, 피고 4는 2층 70호(상호 : ◎◎◎◎) 부분을 각 점유 ·사용하며 위 각 상호로 아동복 판매점을 운영하고 있다.

[Ground of recognition] Facts without dispute, Gap 1 through 10, 13, 19 through 30, 33, 35, 39, 43, Eul 1 through 16, 22 through 24, 29 through 30, 31, and 34 (including branch numbers, if any; hereinafter the same shall apply) respectively, and the purport of the whole pleadings

2. Judgment on the plaintiffs' primary claims

A. Determination on the cause of the claim

1) Whether the plaintiffs' exercise of ownership to each of the stores of this case

위 인정사실에 갑 제14 내지 18호증, 을 제3호증의 각 기재와 변론 전체의 취지를 보태어 알 수 있는 다음과 같은 사정 즉, ① 비록 □□□상가 건물이 이 사건 리모델링 공사로 앞서 본 바와 같이 그 구조와 층수가 변경되고 면적이 증가되었다 하더라도, 기존 건축물이 완전히 철거되어 멸실된 상태에서 현존 건물이 건축된 것이라고 볼 만한 별다른 자료가 없는 이상, 위와 같은 사정만으로는 현존 건물이 이 사건 리모텔링 전 기존 건축물과 사회통념상 동일성이 인정될 수 없을 정도라고 인정하기 어려운 점, ② 이 사건 리모델링 이후 □□□상가 건물 2층의 내부구조가 기존과 크게 달라졌다 하더라도, 현존 건물의 1층 및 2층 내부 각 점포들은 바닥에서부터 천정까지 쉽게 이동할 수 없는 재질로 설치된 벽체에 의하여 그 각 경계가 구분되어 있어 그 구조상·이용상 독립된 상태인 점, ③ 이 사건 리모델링은 이 사건 지주회가 중심이 되어 그 계획안을 만들어 시행하였고, 리모델링 이후 이 사건 지주회는 2010. 4. 30. 임시총회를 열어 □□□상가 건물 지주들이 분담할 총 건축비를 2,500,000,000원, 평당 8,500,000원으로 산정하였으며, 이에 따라 □□□상가 건물의 구분소유자 겸 지주들이 건축비 일부씩을 분담하여 이 사건 리모델링을 진행한 것으로 보이는 점, ④ 이 사건 리모델링이 관할관청의 허가 없이 이루어져 그 이후 □□□상가 건물에 대하여 표시변경등기 등이 이루어지지는 않았지만, 이 사건 리모델링이 끝난 후에 □□□상가 건물의 기존 구분소유자 겸 지주들은 □□□상가 건물의 1, 2층 각 점포를 기존 구분소유 면적 및 그 각 대지지분 등을 기준으로 각 점포를 배정하여 그 각 배정 점포를 각자 독립적으로 구분소유하기로 하였고, 이 사건 지주회도 위와 같은 점포 배정에 따라 □□□상가 건물을 관리하여 온 것으로 보이는 점, ⑤ 이 사건 리모델링 당시 이 사건 건물의 소유자인 소외 1도 □□□상가 건물의 기존 구분소유자 겸 지주들 사이의 위와 같은 점포 배정을 통해서 이 사건 건물 부분으로 □□□상가 건물 1층 소재 203호, 204호, 207호, 276호와 2층 소재 이 사건 각 점포를 특정하여 배정받아 이를 구분소유하기로 한 것으로 보이는 점, ⑥ 그 후 위와 같이 배정된 각 점포들은 그 위치와 면적이 특정되어 독립하여 매매나 임대의 목적물로 거래되고 있는 점, ⑦ □□□상가 건물의 구분소유 부분으로 등기된 일부 부동산에 대한 경매절차에서도 집행관의 현황조사 및 감정인의 감정 과정에서 이 사건 지주회 및 점포 도면 등을 통해 기존 구분소유자에게 배정된 이래 독립된 구분소유 부분으로 취급된 각 점포를 특정하여 이를 기초로 매각물건명세서가 작성되고 부동산 매각이 이루어졌고, 그 과정에서 소외 3도 이 사건 건물과 그 대지지분에 관한 위 서울중앙지방법원 2009타경13034호 임의경매절차에서 이 사건 건물과 그 대지지분을 매수한 후 이 사건 건물의 실제 부분으로 특정된 □□□상가 건물의 1층 203호, 204호, 207호, 276호와 2층 이 사건 각 점포에 대하여 소유자로서 점유, 사용하다가 소외 5에게 이를 매도한 점, ⑧ 그 후 이 사건 건물과 그 대지지분에 관하여 이 사건 경매절차가 진행되어 집행관의 현황조사 및 감정인의 감정 과정에서 이 사건 건물의 실제 부분이 종전과 같게 이 사건 건물이 □□□상가 건물의 1층 203호, 204호, 207호, 276호와 2층 이 사건 각 점포로 특정되어 매각절차가 진행된 점, ⑨ 또한, 소외 10은 □□□상가 건물의 독립된 구분소유 부분으로 등기된 제1, 2층 철근콘크리조 1층 254.01㎡, 2층 204.25㎡의 소외 10 지분에 관하여 2005. 2. 3. 소외 2에게 설정해 준 근저당권이 이 사건 리모델링 전에 설정된 것이고 이 사건 리모델링 전의 기존 건물과 현 건물 사이의 동일성이 인정되지 않는 등으로 위 근저당권설정등기가 무효라고 주장하며 소외 2를 상대로 위 근저당권설정등기의 말소를 구하는 소를 제기하였는데( 서울중앙지방법원 2009가합126972호 ), 위 법원이 2010. 8. 12. 소외 10 패소 판결을 선고하였고, 그 항소심( 서울고등법원 2010나84927호 ) 법원이 2011. 4. 27. 위 근저당권설정등기가 유효하다는 등의 이유로 소외 10의 항소를 기각하였으며, 그 후 이에 대한 소외 10의 상고( 대법원 2011다42805호 )가 기각됨으로써 위 항소심 판결이 확정된 점, ⑩ 한편 소외 2는 위 근저당권설정등기에 기하여 위 소외 10 지분에 관한 임의경매개시신청을 하였고 임의경매개시결정( 서울중앙지방법원 2009타경13058호 )이 내려져 임의경매절차가 진행되었는데, 소외 10이 이에 대하여 경매개시결정에 대한 이의신청을 하였으며( 서울중앙지방법원 2010타기3930호 ), 위 법원이 소외 10의 이의신청을 인용하자 소외 2가 다시 항고를 하였고( 서울중앙지방법원 2011라466호 ), 항고심 법원은 위 임의경매는 소외 10 소유로 등기되어 있는 건물 지분에 대한 경매로서 적법하다는 이유로 소외 2의 항고를 받아들여 소외 10의 경매개시결정에 대한 이의신청을 기각하는 결정을 하였으며, 소외 10의 상고( 대법원 2011마1963 )가 기각됨으로써 위 항고심 결정이 확정된 점 등을 종합적으로 고려하면, 비록 이 사건 리모델링 후 표시변경등기가 이루어지지 않아 이 사건 건물의 공부상 표시와 실제 현황이 달라졌다고 하더라도, 앞서 본 바와 같은 경위로 이 사건 건물 부분으로 특정된 □□□상가 건물 1층 203호, 204호, 207호, 276호와 2층 이 사건 각 점포는 다른 부분과 구분되는 독립성을 갖추어 구분소유의 객체가 되어 이 사건 건물의 소유권이 미치는 실제 부분에 포함된다 할 것이므로, 이 사건 각 점포에 대하여는 이 사건 건물 소유권의 효력이 미친다고 봄이 타당하다.

2) Defendants’ duty of delivery

Therefore, barring special circumstances, the Defendants are obligated to deliver each of the instant stores possessed by the Defendants among each of the instant stores to the Plaintiffs who exercise their ownership to each of the instant stores as the owner of the instant building.

B. Determination of the defendants' assertion

1) Determination as to the assertion of the identity of a building on △ Dog terms

The Defendants asserted to the effect that each of the stores in this case cannot be deemed to be included in the instant building since the existing building was newly constructed after the removal of the existing building in around 2005 due to the instant remodeling construction.

Therefore, as seen earlier, even if the building was changed to the structure and the number of floors of the instant remodeling construction, and even if the area was increased, unless there is any specific material to deem that the existing building was constructed under the condition that the existing building was completely removed and destroyed, it is difficult to recognize the existing building to the extent that it cannot be recognized as identical to the existing building before the instant remodeling in terms of social norms. Although the public record of the instant building and the actual state of the instant building are different due to the lack of the registration of alteration of indication after the instant remodeling, it is reasonable to deem that the instant building was specified as the part of the instant building in the circumstance as seen earlier, and that the instant building belongs to the ownership of the instant building because the store was located in the first floor, 203, 204, 207, 276, and 276 of the instant building. Accordingly, even if all evidence submitted by the Defendants are submitted, the aforementioned assertion by the Defendants cannot be viewed differently.

2) Determination as to the assertion that the Plaintiffs’ request for delivery of a store is not allowed by the Articles of Incorporation of the Prop.

The Defendants asserted to the effect that it is not permissible for the Plaintiffs, a member of the instant props association, to file a lawsuit directly seeking delivery of each of the instant stores against the Defendants, without going through the instant props association pursuant to Article 29(5) of the Articles of Incorporation of the instant props association.

Therefore, according to the statements in evidence Nos. 8, 22, and 25, it is recognized that the plaintiffs are members of the instant prop-by-law in the list of members of the instant prop-by-law. Since the articles of incorporation of the instant prop-by-law was amended on Apr. 4, 201, Oct. 12, 2012, and April 24, 2015, respectively. Article 29(5) of the articles of incorporation amended on Oct. 12, 2012, “The instant prop-by-law member cannot personally express his/her own name to the lessee.” A building is an aggregate building as a co-owned share and shall be determined through prior resolution of the board of directors or a general meeting when taking legal measures. However, it is recognized that the provisions have been maintained since it was newly established.

However, according to the overall purport of evidence No. 42 and evidence No. 40 and evidence No. 40, the general assembly for the amendment of the articles of incorporation as of Oct. 12, 2012, it is difficult to view that Nonparty 11 et al. underwent legitimate convocation procedures, such as sending a notice stating the purpose of meeting under Articles 71 and 72 of the Civil Act applicable mutatis mutandis in principle as to whether the legitimate convening authority was a legitimate convening authority or a non-corporate group, and in addition, in the appellate court of the lawsuit (Seoul High Court 2016Na2081919, Seoul High Court 2016Na2081919), the above court dismissed the appeal by Nonparty 9 on Aug. 25, 2017, and it is difficult to view that the aforementioned provisions were valid in light of the amended articles of incorporation and evidence No. 2010, Oct. 12, 2012.

3) Determination as to the Defendants’ assertion that they are legitimate occupants as lessees

A) The defendants' assertion

The Defendants had the legitimate right to possess each of the above stores among each of the stores of this case since they lawfully concluded each of the above lease agreements through the props of this case, etc. with the authority to conclude the lease agreement.

B) Determination

(1) According to the statements in Gap evidence Nos. 7 through 10, Eul evidence Nos. 1, 5 through 7, and 32, the following facts can be acknowledged:

(1) Stores referred to in 28 (Trade Maritime Affairs Association)

Defendant 1, on January 15, 2014, set each term of lease from November 1, 2013 to October 31, 2015, and entered into a lease agreement as to 2.59 square meters among the stores in 28 units with Nonparty 5. As to 28 units, Defendant 1 and Nonparty 12 entered into a lease agreement as to 1.53 square meters among the stores in 28 units, and 0.53 square meters among the stores in 28 units, respectively. In addition, Defendant 1 set each term of lease from September 1, 2016 to August 31, 2018 by setting the term of lease from September 1, 2016 to the end of 20.59 and 1.53 square meters among the stores in 28 units in this case, and between Nonparty 12 and Nonparty 28, respectively, among the stores in this case.

(2) Store No. 67 (trade name: Miscellaneous Party)

On February 4, 2014, Defendant 2: (a) set the respective lease period from November 1, 2013 to October 31, 2015; (b) concluded a lease contract with Nonparty 5 regarding 2.42 among the 67 stores; and (c) between Nonparty 13 and Nonparty 13 regarding 1.0 square meters among the 67 stores; and (d) on December 31, 2016, Defendant 2 set the respective lease period from September 1, 2016 to August 31, 2018; and (e) concluded each lease contract with Nonparty 13 as to 67 stores among the 67 stores; and (e) concluded each lease contract with Nonparty 13 as to 1.0 square meters among the 67 stores.

(3) A store No. 68 (trade name: ▽▽▽▽▽)

On January 29, 2014, Defendant 3: (a) set the respective term of lease from November 1, 2013 to October 31, 2015; (b) concluded a lease agreement with Nonparty 5 as to 2.9 from the 68 store; and (c) as to 0.25 square meters from the 68 store between Nonparty 14 and Nonparty 14; and (d) concluded each lease agreement with Defendant 3 as to 0.25 square meters from the 68 store. In addition, as to 68 stores from September 1, 2016 to August 31, 2018, Defendant 3 set the respective term of lease from around December 1, 2016 to the 68 store from Nonparty 14, each lease agreement was concluded between Nonparty 14 and Nonparty 14 on 0.25 square meters.

④ 70호 점포(상호:◎◎◎◎)

Defendant 4, on March 28, 2014, set each term of lease from November 1, 2013 to October 31, 2015, and concluded each lease agreement with Nonparty 5 on 2.34 square meters among the 70 stores, and between Nonparty 13 and Nonparty 13 on 0.52 square meters among the 70 stores. In addition, on December 2016, Defendant 4 set each term of lease from September 1, 2016 to August 31, 2018, with regard to 2.34 square meters among the 70 stores in this case, each lease agreement was concluded between Nonparty 13 and Nonparty 13 on 0.52 square meters among the 70 stores.

(2) However, according to the aforementioned evidence, Article 3(3) of the instant Articles of Incorporation amended by the Defendants as of October 12, 2012 provides that “All management and operation, such as the scope of management - collection of rent, lease contract, and reputation, etc., shall be managed at the office of the operating council according to the precedent.” The instant props association concluded a lease agreement with respect to individual stores in the building under the name of the props association. However, as seen earlier, the amendment of the said articles of incorporation cannot be deemed as effective due to the serious procedural defect in the general meeting resolution. Thus, Article 3(3) of the said articles of incorporation cannot be deemed as valid. The evidence submitted by the Defendants alone cannot be deemed as having legitimate authority to conclude the above lease agreement with the Defendants, and it is difficult to view that each of the above lease agreements concluded by the Defendants with the props association, etc. was concluded on October 31, 2015, and it is difficult to view that all of the aforementioned lease agreements concluded by the Defendants to be concluded by Nonparty 216.

4) The plaintiffs' assertion that they approved the possession and use of each of the stores of this case by the defendants

The Defendants asserted to the purport that since they received the monthly rent from the Defendants after they acquired ownership in the instant building, they should be deemed to have approved the possession and use of each of the instant stores by the Plaintiffs. However, according to all evidence submitted by the Defendants, it is insufficient to recognize the Defendants’ assertion, and there is no other evidence to acknowledge it. Therefore, the Defendants’ assertion is without merit.

C. Sub-committee

After all, the defendants have the duty to deliver each of the above stores to the plaintiffs as stated in Paragraph 2, which is the pertinent store possessed by each of the above types of stores.

3. Conclusion

Thus, the plaintiffs' primary claims against the defendants should be accepted on the grounds of their own reasoning (as long as the plaintiffs' primary claims are accepted, the plaintiffs' primary claims shall not be judged as to the conjunctive claims). Since the judgment of the court of first instance is unfair with different conclusions, it is accepted by the plaintiffs' appeal and revoked, and order the defendants to deliver each of the stores of this case.

[Attachment]

Judges Kim Jong-soo (Presiding Judge)