[1] In a case where a person who constructed an aggregate building purchases a section of exclusive ownership and a share in a site, and pays the price in full, the actual requirements for the acquisition of ownership are met, but only the registration of ownership transfer for the section of exclusive ownership has been completed and the ownership transfer has not been completed, whether the buyer has the right to possess and use the site of the building by the effect of the sales contract (affirmative), and whether the above right to possess and use the site constitutes "right to use the site" under Article 2 subparagraph 6 of the Multi-Unit Residential Building Act (affirmative)

[2] Although registration of an aggregate building shall be made simultaneously with registration of an exclusive ownership and registration of a housing site share, due to special circumstances, whether a purchaser who has received the registration of ownership transfer only for an exclusive ownership can dispose of a housing site use right separately from the exclusive ownership before he/she received the registration of ownership transfer of a housing site share (negative)

[1] In the case of a large-scale aggregate building, such as an apartment building, a lot of land, delay in the procedure for subdivision, lot of land substitution, delay in the decision on the ratio of shares per household, etc., the transfer registration of ownership to the section for exclusive use is completed in the future through the buyer, and the registration of ownership transfer to the portion for a considerable period of time has been delayed. In this case, the actual requirements for the acquisition of ownership by purchasing the section for exclusive use and shares in the form of sale from the constructor of an aggregate building together with the proceeds in the form of sale, and paying the proceeds in full. However, in the case of the portion for exclusive use, a person who has received only the ownership transfer registration for the portion for exclusive use and has not yet completed the registration of ownership transfer due to the above reasons has the right to possess and use the site of a building in order to own the portion for exclusive use as a result of the validity of a sales contract. Such right to possess and use is a right different from a mere right to possess a lot of land, which is the right of exclusive owner under Article 2 subparagraph 6 of the Multi-Unit Building Act.

[2] In full view of the contents and legislative intent of the Act on the Ownership and Management of Multi-unit Building, in a case where it is anticipated that the registration of the housing site portion was made at the same time with the registration of the section for exclusive use in the absence of such circumstances as the delay in the division, combination and replotting procedure of the housing site, delay in the determination of the ratio of shares per household, etc., if the registration of the housing site portion is expected to have been made, even though the ownership transfer was made only with respect to the section for exclusive use, the number of buyers possessing the housing site based on the right to possess and use the housing site held on the buyer's status, cannot dispose of the right to use the housing site, which is the right to possess and use the housing site, before the registration of ownership transfer of the housing site portion is made, separately from the section for exclusive use, and the

[1] Article 2 subparag. 6 and Article 20 of the Multi-Unit Residential Building Act, Articles 192 and 263 of the Civil Act / [2] Article 2 subparag. 6 and Article 20 of the Multi-unit Residential Building Act, Article 263 of the Civil Act

[1] Supreme Court Decision 93Da60144 delivered on March 14, 1995 (Gong1995Sang, 1598), Supreme Court Decision 96Da14661 delivered on December 20, 1996 (Gong1997Sang, 352) decided June 26, 199, Supreme Court Decision 97Da42823 delivered on June 26, 199 (Gong198Ha, 1968)

Plaintiff (Attorney Park Sang-chul, Counsel for the plaintiff-appellant)

Defendant 1 (Attorney Lee Jong-chul, Counsel for defendant-appellee)

Defendant 2 (Attorney Lee Jong-chul, Counsel for defendant-appellant)

Seoul District Court Decision 98Na10259, 10266 delivered on July 31, 1998

All appeals are dismissed. The costs of appeal are assessed against the Defendants (including the Plaintiff).

1. Regarding ground of appeal No. 1

A. Article 20 of the Multi-unit Building Act (hereinafter referred to as the "multi-unit building Act") provides that the right to use the site of a sectional owner is subject to the disposition of his/her exclusive ownership (Paragraph 1), and that the sectional owner shall not dispose of the right to use the site separately from his/her exclusive ownership unless otherwise stipulated by the regulations (Paragraph 2), and that the prohibition of separate disposal cannot be asserted against a third party who has acquired a real right in good faith without registering the purport thereof (Paragraph 3). The purport of the above provision is to prevent the separation of exclusive ownership from the exclusive ownership of an aggregate building and the right to use the site from the creation of a sectional ownership without the right to use the site by preventing the occurrence of a legal stability and a reasonable regulation

On the other hand, in the case of a large-scale aggregate building such as an apartment building, the transferee has completed the registration of ownership transfer to the section for exclusive use through the buyer for a considerable period of time due to the delay in the decision on the ratio of shares per household, etc. In this case, the ownership transfer registration of the section for exclusive use and the share in the site has become final and conclusive. In such a case, the building constructor of an aggregate building has the right to possess and use the site of a building in order to own the section for exclusive use by acquiring the section for exclusive use and the share in the site in the form of parcelling-out and paying the purchase price in full. However, as seen above, a person who has received only the ownership transfer registration of the section for exclusive use and has not been completed due to the above reasons shall have the right to occupy and use the site of a building in order to own the section for exclusive use as a result of the validity of a sales contract. This right to possess and use is a right different from the simple right to possess the site, which is a right held by the sectional owner under Article 2 subparagraph 6 of the Aggregate Act.

In addition, in light of the above provisions and legislative intent of the Aggregate Buildings Act, if there is no circumstance such as the division, combination of lots and delay of land substitution procedure, delay of decision on the ratio of shares per household, etc., it is anticipated that the registration of housing site portion has been made as a matter of course with the registration of an exclusive ownership, but the buyer who occupies the housing site based on the right to possess and use the housing site held on the buyer's status, is not able to dispose of the right to use the housing site, which is the right to occupy and use the housing site, before the registration of ownership transfer of the housing site portion is made as the buyer's status, as well as the right to use the housing site, which is the right to possess and use the housing site, which is the right to occupy and use the housing site, before the registration of ownership transfer of the housing site portion and the housing site shares to be acquired

Unlike this, Supreme Court Decision 96Da14661 Decided December 20, 196, which held that the right held in the position of purchaser who has not filed for registration of ownership transfer for shares in the site due to the reasons under the registration procedure is not a right to use the site under Article 2 subparagraph 6 of the Aggregate Buildings Act, shall be discarded to the extent that it conflicts with the above opinion.

B. According to the reasoning of the judgment below and the records, Defendant 1 (Counterclaim; hereinafter referred to as “Defendant 1”) obtained the ownership transfer registration under the name of Defendant 2 (hereinafter referred to as “the apartment of this case”) and the ownership of the apartment of this case under the name of Defendant 2, who is son, and obtained the ownership transfer registration under Defendant 2 on January 23, 1990, on the ground that the ownership registration has not yet been made on the ownership transfer registration on the apartment of this case. Defendant 2 obtained the ownership transfer registration under the name of Defendant 2 on April 23, 1992, decided to transfer the apartment of this case and its share to the Plaintiff in lieu of the payment of consolation money, and obtained the ownership transfer registration on April 25, 1992, by raising the agreement to the Plaintiff on April 27, 199 and completing the ownership transfer registration under the name of Defendant 1 on the ground that only the apartment of this case was donated to the Plaintiff on April 27, 1992.

Therefore, in light of the above legal principles, although Defendant 2 failed to obtain the registration of ownership transfer for the apartment of this case at the time of completion of the registration of ownership transfer for the apartment of this case, he acquired the right to use the site, which is the right to possess and use the apartment of this case, in the position of the buyer who paid the purchase price, and the plaintiff also acquired the right to use the site by acquiring the apartment of this case and the right to use the apartment of this case from Defendant 2 and completing the registration of ownership transfer for the apartment of this case. Therefore, Defendant 2, who was the owner of the apartment of this case, did not dispose of the share of this case acquired after he completed the registration of ownership transfer for the apartment of this case, to a third party who is not the owner of the exclusive ownership, but did not dispose of the share of this case after disposing of it in violation of this legal principle. This legal principle applies likewise to Defendant 2, as the title trust for the share of this case is terminated.

C. Although there is no inappropriate point in the reasoning of the judgment below, it is justified in the conclusion that the registration of ownership transfer for the shares in the site of this case completed in Defendant 1's future is null and void, and there is no error in the misapprehension of the legal principles as to the prohibition of separate disposal of the right to use the site of this case.

The ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

As seen earlier, insofar as the transfer registration of ownership of the instant land shares made in Defendant 1’s future is null and void, Defendant 1’s counterclaim claim against the Plaintiff seeking the return of unjust enrichment equivalent to the rent for the instant land shares on the premise that Defendant 1 effectively acquired the instant land shares, is without merit. Therefore, the lower court’s rejection of Defendant 1’s counterclaim claim is just and there is no error in the misapprehension of legal doctrine as to the calculation of unjust enrichment.

This part of the grounds of appeal is without merit.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) shall be delivered with the assent of all Justices Song Jin-hun who reviewed the appeal of this case, with the assent of all Justices Lee Jin-hun.