KF real estate trust Co., Ltd. (Law Firm Cheong and one other, Counsel for the plaintiff-appellant)

Defendant 1

Defendant 2

Defendant 3 Stock Company

Defendant 4 (Attorney Lee Jae-in, Counsel for defendant-appellant)

June 19, 2014

Suwon District Court Decision 2012Gahap2015 Decided August 20, 2013

1. Of the judgment of the first instance court, the part against Defendant 1 and the Plaintiff against Defendant 3 Co., Ltd. that orders the following performance shall be revoked.

A. Defendant 1:

(1) deliver part 1 108 square meters in the ship connecting each point in the attached Form No. 1, 2, 3, 4, 5, 6, 7, 8, and 1 among the 26,846 square meters prior to Gwangju City ( Address 1 omitted) in sequence;

(2) remove the above ground reinforced concrete building;

(3) The amount of KRW 2,527,200 and interest thereon shall be paid at the rate of KRW 5% per annum from August 31, 2012 to June 27, 2013; KRW 20% per annum from the next day to the date of complete payment; and KRW 223,236 per annum from August 31, 2012 to the time of complete delivery of the land as set forth in the above paragraph (1).

B. The primary Defendant 3 Co., Ltd. connects the Plaintiff with each point of the attached Form 1, 2, 3, 4, 5, 6, 7, 8, and 1 among the 26,846§³ prior to Gwangju City ( Address 1 omitted) in sequence, in the order of 1,2, 3, 4, 5, 6, 8, and 1.

2. The plaintiff's remaining appeals against the defendant 1 and all appeals against the defendant 2 and the main defendant 3 are dismissed.

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

4. The provisional execution of paragraphs 1-A and 2 may be effected respectively.

Purport of claim

The main text No. 1-A(1) and (2) are as follows: (a) Defendant 1 pays to the Plaintiff 2,527,200 won with 5% per annum from August 30, 2012 to June 27, 2013; (b) 20% per annum from the next day to the day of complete payment; and (c) from August 31, 2012 to the day of complete delivery of the instant portion of land; and (d) with 223,236 won per annum from August 31, 2012 to the day of complete delivery of the instant portion of land.

(1) Defendant 2 shall, in sequence, connect the Plaintiff with 26,84 square meters (1 omitted), 30 square meters of the aforesaid 24 square meters, 34 square meters of the land (2.0 square meters of the instant land), 34 square meters of the aforesaid 24 square meters, 34 square meters of the land (2.0 square meters of the instant land), 44 square meters, 34 square meters of the aforesaid 24 square meters, 24 square meters of the instant land (2.0 square meters of the instant land), 3 square meters of the land, 38 square meters of the aforesaid 24 square meters, 44 square meters of the aforesaid 3 square meters, 44 square meters of the aforesaid land (2.0 square meters of the instant land), 3 square meters of the aforesaid 24 square meters, 3 square meters of the adjacent drawings, 25 square meters of the aforesaid land, 262 square meters of the connected drawings, 27 square meters of the instant land (24 square meters of the instant land).

(1) Defendant 3 Co., Ltd. (hereinafter “Defendant 3 Co., Ltd.”) primarily and indirectly moves out of the Plaintiff’s housing for reinforced concrete structure (hereinafter “instant housing”) and each of the obstacles of this case, each of which was connected in order to 1,2, 3,4, 5, 6, 7, 8, and 1 of the annexed drawings among the instant land (hereinafter “instant land”). Defendant 4, each of which was removed from the instant land and each of the obstacles of this case.

Purport of appeal

[Plaintiff]

In the judgment of the first instance court, the part against the plaintiff against the defendant 1 and the surrounding defendant 3 shall be revoked. The defendant 1 shall deliver the land of this case to the plaintiff, and the house of this case shall be removed, 5% per annum from August 30, 2012 to June 27, 2013, and 20% per annum from the next day to the day of complete payment, and 223,236 won per annum from August 31, 2012 to the day of complete delivery of the land of this case. The main defendant 3 shall pay to the plaintiff, and the main defendant 3 shall leave the house of this case to the time of complete delivery of the land of this case.

[Defendant 2, Defendant 3, and Defendant 3]

The part against the above Defendants in the judgment of the court of first instance is revoked. The Plaintiff’s claim against the above Defendants corresponding to the revoked part is dismissed in entirety.

1. The summary of the case and the facts premised on the case

A. Case summary

In this case, the plaintiff's exclusion of disturbance based on the ownership of the land of this case against defendant 1 and defendant 2, who are some of the owners of the land of this case, are the delivery of the occupied part, the removal of the surface property and the compensation for damages equivalent to the rent from illegal possession, and the plaintiff's primary defendant 3 (preliminary defendant 4), who is the possessor of the surface property of this case, the removal from the surface

The first instance court accepted part of the Plaintiff’s claim against Defendant 2, Defendant 3, and Defendant 3, relating to the land and the instant obstacles, and rejected the remainder of the claim. On the other hand, the Plaintiff’s claim against Defendant 1, Defendant 1, and Defendant 1 related to the instant part of land and the instant house were all dismissed on the ground of the completion of the statute of limitations for acquisition by possession by Defendant 1. Accordingly, the Plaintiff appealed against Defendant 1, Defendant 2, and Defendant 2, respectively.

B. Presumed factual basis

The court's explanation on this part is identical to the statement "1. Basic Facts" among the grounds of the judgment of the court of first instance. Thus, it is acceptable to accept this part in accordance with the main sentence of Article 420 of the Civil Procedure Act

2. Determination as to the claim against Defendant 1

A. Establishment of Defendant 1’s removal, delivery, and liability for damages

According to the above facts, Defendant 1, as the owner of the instant housing, is the illegal occupant of the instant land, barring special circumstances, is obligated to remove the instant housing and deliver the instant land to the Plaintiff, who is the owner of the instant land, and to compensate for damages equivalent to the rent due to the possession thereof.

B. Whether the prescription period for acquiring possession by Defendant 1 has expired

1) Parties’ assertion

【Defendant 1’s argument】

Since Nonparty 2 purchased the instant house on October 11, 1989 and commenced possession of the instant part of the land, the acquisition by prescription has been completed by occupying it with the intention of ownership for not less than 20 years by the Defendant through Nonparty 4, following Nonparty 4’s succession to that possession, it is impossible to comply with the Plaintiff’s request.

【Plaintiff’s Claim】

Nonparty 2 is merely a title trustee of the instant land, and the Plaintiff is not an owner at the time of completion of the statute of limitations for acquiring possession by Defendant 1, but a new interested party thereafter. Thus, Defendant 1 cannot set up against the completion of the statute of limitations for acquiring possession in relation to the Plaintiff.

2) Relevant legal principles

A) Relationship between the completion date and the third party

Although it is a system that excludes the locked person above the right and respects the real situation of occupancy use, it should be recognized only under extremely exceptional circumstances. Since it is highly likely that the law unfairly infringes on other person's property right, the requirement for acquisition is extremely strict. Therefore, the requirement for acquisition is extremely strict. Furthermore, if a third party is first registered before the acquisition by prescription of 20 years where the acquisition by prescription is required to acquire the ownership by the registration of the 20-year acquisition by the 20-year acquisition by the 20-year acquisition by the 20-year acquisition by prescription, it is extremely confirmed that the third party's registration should take precedence over the third party's registration even if it is bad, such as inheritance, if the third party bears the duty to transfer ownership to the person who acquired by prescription, such as inheritance, or if the third party bears the legal obligation to transfer ownership to the person who acquired by prescription, the registration is more effective than the right to claim the registration of the person who acquired by prescription, unless it is legally null and void by law.

However, the possessor does not lose his/her right to claim the registration of transfer of ownership due to the prescriptive acquisition against the owner at the time of the completion of the prescriptive acquisition, but only becomes unable to perform his/her obligation to register the transfer of ownership against the owner. Thus, if the ownership is restored to the owner at the time of the completion of the prescriptive acquisition for any reason thereafter, the possessor may claim the effect of prescriptive acquisition against the owner (see, e.g., Supreme Court Decisions 90Da14225, Jun. 25, 1991; 93Da42016, Feb. 8, 1994). In this case, the acquisition and registration of the real estate shall be completed between the expiration of the prescriptive acquisition period and the acquisition of the real estate by a third party who is unable to claim the completion of the prescriptive acquisition, and the possessor shall be limited to a third party who has a new interest after the expiration of the prescriptive acquisition period and who is worth protecting the safety of transactions and the function of the registration system in order to not to damage the safety of the registration system (see, 3015Da34, Mar. 2015, 2015.

(B)a trust;

The trust under the Trust Act requires the trustee to manage and dispose of the property right for the purpose of the trust by transferring a specific property right to the trustee or disposing of it (see Article 1(2) of the Trust Act). In the case of a real estate trust, if the registration of ownership transfer is completed in the future of the trustee, the ownership inside and outside the country is entirely transferred to the trustee, and the ownership is reserved in the internal and internal relationship with the truster. As such, the validity of the trust is that the trustee has the right to manage the trust property inside and outside the country as a result of the transfer of the ownership of the trust property to the trustee. Provided, That the trustee is merely a burden of restrictions to manage the trust property within the scope of the purpose of the trust (see Supreme Court Decision 200Da70460, Apr. 12, 200, etc.)

Article 3 of the Trust Act provides that “a trust may oppose a third party by making a registration or record with respect to property subject to registration,” and Articles 123 and 124 of the former Registration of Real Estate Act (amended by Act No. 10580, Apr. 12, 201; hereinafter “Registration of Real Estate Act”) shall apply for registration of the trust: ① the name and address of the truster, trustee, and beneficiary; ② the purpose of management method of the trust; ② The purpose of the trust (see, e.g., method of management of the trust property) the document stating provisions of the trust shall be attached to the application; (g) the document shall be deemed as part of the registry; and (g) the statement thereof shall be deemed as part of the trust register; and (g) the person whose name is recognized as part of the trust registration; and (g) the person whose name is entered in the trust register with the beneficiary’s name shall be subject to restriction on the transfer registration for 3rd party, 201.”

(iii) the facts of recognition

In full view of the purport of the entire pleadings, the following facts may be acknowledged in the evidence Nos. 1-4, 1-2, and 8.

A) On June 29, 2009, the registration of ownership transfer was completed in the name of the non-party 1 on June 29, 2009. On the same day, the registration of the trust was completed in the name of the debtor corporation, Solomon Savings Bank (the maximum bond amount of KRW 23.4 billion), Busan Solomon Savings Bank (the maximum bond amount of KRW 10.4 billion), Gyeonggi Solomon Savings Bank (the maximum bond amount of KRW 3.9 billion), Honam Solomon Savings Bank (the total bond amount of the above savings banks; hereinafter the above savings banks referred to as "the savings banks of this case"). On the same day, the registration of ownership transfer was completed in the name of the plaintiff pursuant to subparagraph 217 of the trust ledger (the trust of this case) with the trustee pursuant to subparagraph 217 of the trust ledger as part of the registration of the trust, and the important part of the entry in the trust trust ledger recognized as part of the registration is as follows:

B) Since the debtor's private house construction failed to repay the debt to the savings bank of this case, the savings bank of this case intended to dispose of the land of this case, but failed to meet the auction procedure, and the savings bank of this case purchased the land of this case.

C) On August 31, 2011, the registration of trust of this case was terminated due to the transfer of ownership due to the sale on the same day in the name of the savings bank of this case. On the same day, the registration of trust of this case was cancelled due to the disposal of trust property. On the same day, the registration of trust of which the trustee was the Plaintiff pursuant to Article 2011-1647 of the trust ledger, simultaneously with the registration of transfer of ownership in the name of the Plaintiff, and the main contents of the trust ledger are as indicated in the column of “second trust”

The trustee, Nonparty 1 (former owner) of the second trust trust, which is included in the main text, is the purpose real estate security trust for the purpose of the trust of Nonparty 1, the truster, the beneficiary of the first beneficiary of the Plaintiff, and the savings bank of this case, which is the purpose real estate security trust for the trust of Nonparty 1, the truster, i.e., the trust for the management of ownership

4) Whether the Plaintiff constitutes a person who restored ownership of the instant land in relation to Defendant 1 or a new interested person after the completion of prescriptive acquisition

Examining the above facts in light of the legal principles as seen earlier, the Plaintiff’s acquisition of ownership on the land of this case on June 29, 2009 came to have an internal and external management right on the land of this case as the trustee of Nonparty 1. The Plaintiff’s acquisition of ownership on August 31, 201, as the trustee of the savings bank of this case, has an internal and external management right on the land of this case under the status of the trustee of the savings bank of this case. In this case, the Plaintiff’s management right is restricted by the truster, trustee, beneficiary, and trust purpose stated in the real estate registry, and by such restriction, can also be asserted against Defendant 1, the third party.

Therefore, even if Defendant 1’s acquisition by prescription on October 11, 2009 by possession of the instant land was completed, the Plaintiff’s obligation to implement the procedure for the registration of ownership transfer against Defendant 1, who had been the owner at the time of completion, was terminated by the trust contract of this case, and the ownership on the instant land was transferred under the name of the Savings Bank. Furthermore, in light of the safety of the instant real estate transaction and the function of the registration system, the registration system, the entries in the trust ledger that can oppose a third party, and the principle of independence of trust property, even if the Plaintiff was again listed in the instant second trust as the owner of the instant land, it is nothing more than the Plaintiff’s right to manage the instant land within the scope publicly announced in the trust ledger, and it cannot be evaluated equally as recovering the status of the trustee, that is, the Plaintiff’s owner who acquired the instant land through the first trust after the expiration of the acquisition by prescription. Therefore, it is reasonable to deem that the Plaintiff is a new interested party after the expiration of the acquisition period by prescription.

C. Whether Defendant 1 acquires legal superficies under customary law

【Defendant 1’s argument】

On August 27, 1989, Nonparty 2 purchased all obstacles, including the instant land and the instant housing on its ground from Nonparty 3, etc., who is Nonparty 9’s inheritor. Although only the ownership transfer registration on the instant housing was completed and the title of ownership was changed formally, Nonparty 4 is the owner of the instant land and the instant housing on its ground. Thus, Nonparty 4 acquired the statutory superficies under the customary law on the instant housing by purchasing only the instant housing from Nonparty 2 on October 9, 1995, and completing the registration of ownership transfer. Defendant 1 succeeded to this.

[Judgment]

However, Nonparty 2 purchased the instant land and the instant land on August 27, 1989, but only on October 11, 1989, the registration of ownership transfer was completed, and only on October 14, 1999, the registration of ownership transfer was completed. Accordingly, on October 9, 1995, Nonparty 4’s purchase of only the instant land and the instant land cannot be deemed as belonging to the same owner. Accordingly, on October 9, 1995, Nonparty 2’s assertion on the premise that Nonparty 2 is the owner of the instant land as well as the instant land is without merit.

D. The establishment of the obligation to return unjust enrichment and the scope of unjust enrichment to be returned by Defendant 1

1) According to the aforementioned premise, from August 31, 201, Defendant 1, who acquired the ownership of the instant land, obtained profits equivalent to the profits from the use of the instant land by occupying and using the instant part of the land from August 31, 2011 to the present day. Accordingly, Defendant 1, who is the owner of the instant land, has a duty to return it to the Plaintiff as unjust enrichment.

2) Furthermore, we examine the amount of unjust enrichment to be returned by Defendant 1.

In ordinary cases, the amount of profit from the possession and use of real estate is equivalent to the rent of that real estate. According to the result of the appraisal of rent by Nonparty 5 of the first instance trial, the monthly rent per m2 from August 31, 201 to August 30, 2012 may be recognized as 1,950 won (=7,199,400 won/3,692 square meters) and 2,067 won from August 31, 2012 to August 30, 2013 (i.e., 7,630,130,130/3,692 square meters). The rent thereafter is confirmed to be the same amount.

Therefore, unjust enrichment to be returned to the Plaintiff by Defendant 1 is ① totaling KRW 2,527,200 from August 31, 2011 to August 30, 2012 (=1,950 won ¡¿ 1,950 won x 12 months x 12 months). ② From August 31, 2012 to August 31, 2012, i.e., KRW 223,236 won per month (=2,067 won x 108 square meters of land size of the instant part).

Therefore, Defendant 1 is liable to pay the Plaintiff for late payment damages from August 31, 2012, which is the day after the date of service of the complaint of this case, which is the date of the Plaintiff’s request for performance, with the sum of the rent of KRW 2,527,200 from August 31, 201 to August 30, 201, and from August 31, 2012 (the Plaintiff is not entitled to recognize the occurrence of delay damages from the same day as of August 30, 2012), which is the day following the end of the above period of unjust enrichment, as unjust enrichment from August 31, 201 to August 30, 2012. However, Defendant 1 cannot be deemed to have disputed the existence or scope of the obligation to pay for late payment damages from the same day as of August 30, 2012, the amount of KRW 5 per annum under the Civil Act until August 21, 2014; and KRW 20% from the next day to the date of payment.

3. Determination as to the claim against Defendant 2

The reasoning for the court’s explanation on this part is as stated in Article 420 of the Civil Procedure Act, inasmuch as the reasoning of the judgment of the first instance is as stated in Article 420 of the Civil Procedure Act, except for the following: (a) or (c) any further determination.

A. Whether the prescription period for the acquisition of possession of the land or the land in this case by Defendant 2 has expired

【Defendant 2’s argument】

On September 29, 195, Defendant 2 purchased the block structure of this case and its surrounding land from Nonparty 2 for the purpose of factory use, namely, 500 square meters. Nonparty 2, on August 27, 1989, purchased the land of this case for the purpose of factory use. Defendant 2 succeeded to the possession of the land of this case, and Defendant 2 succeeded to the possession of Nonparty 2. Defendant 2, on August 27, 1989 (or October 11, 1989, which was the date of ownership transfer registration), for which 20 years have passed from August 27, 2009 (or October 11, 2009, which was the date of ownership transfer registration), acquired the ownership of the land of this case as to the land of this case.

Even if Defendant 2 does not specify the land purchased from Nonparty 2 and it is not recognized as prescriptive acquisition of the entire land of this case, it is recognized as prescriptive acquisition at least regarding the land of block structures of this case.

[Judgment]

1) First, according to the evidence evidence No. 3, the real estate sales contract between Defendant 2 and Nonparty 2 is merely indicated as “500 square meters out of the instant land” and it cannot be readily concluded that the land purchased and occupied by Defendant 2 was the land of this case.

2) Next, we examine as to whether the block structure of this case and its site have been acquired by prescription.

Even if Defendant 2 succeeded to the possession of Nonparty 2 on the block structure, building and its site of this case and the prescription period for acquisition by possession was completed, as seen in the foregoing paragraph 2, the Plaintiff is a new interested person after the completion of the prescription period, and Defendant 2 cannot oppose the Plaintiff by completing the prescription period.

3) Therefore, Defendant 2’s assertion is without merit, considering it as one mother.

B. Whether the legal superficies under additional customary law on the block structure of Defendant 2 is established under the instant block structure

【Defendant 2’s argument】

In the situation where Nonparty 2 actually owns the instant block structure, ③ Defendant 2 sold all of the instant block structure and the instant land to Defendant 2 on September 29, 1995, and Defendant 2 owned it substantially. Defendant 2 was awarded a voluntary auction on August 26, 2002 only for the instant land, which was subsequently awarded a successful bid on August 26, 2002, and the instant land and the instant block structure were substantially changed to the owner of the instant block structure. Therefore, at that point, Defendant 2 acquired legal superficies under the customary law on the instant block structure.

[Judgment]

However, according to the facts acknowledged above, at the time of August 26, 2002, Defendant 2 did not complete the registration of ownership transfer or the registration of ownership transfer of part of the land of this case as of August 26, 2002. Therefore, it cannot be deemed that Defendant 2 was the owner of the block structure of this case and its site. Accordingly, Defendant 2’s assertion is without merit.

C. Whether a claim for return of unjust enrichment is established after a court of first instance rendered a judgment

【Defendant 2’s argument】

Since Defendant 2 had removed and removed all containers, etc. on the instant land after the pronouncement of the first instance judgment, Defendant 2 should not be recognized as a claim for return of unjust enrichment against Defendant 2 after the pronouncement of the first instance judgment.

[Judgment]

Comprehensively taking account of the images of the evidence Nos. 12-1 to 5 of this case, the fact that only the instant house and the instant block building exist, and all the other obstacles of this case are removed.

However, it is evident that the Plaintiff’s claim against Defendant 2 based on the ownership of the instant land, including the instant block structure, does not simply seek the removal of all obstacles, including the instant block structure, and the removal and removal of some obstacles to the instant land. However, the above recognition alone does not deem that the instant obstacles were entirely removed and the instant land was delivered to the Plaintiff, and that Defendant 2 does not occupy and use the instant land, as long as the land was no longer transferred to the Plaintiff. Accordingly, the above assertion by Defendant 2 cannot be accepted.

4. Determination as to each claim against the main defendant 3 and the conjunctive defendant 4

A. Establishment of the main defendant 3 company's eviction duty

1) Comprehensively taking account of the aforementioned premise, Defendant 3, without legitimate title, possessed the instant house and each obstacles, and obstructed the exercise of the Plaintiff’s ownership on the instant land (the preliminary Defendant 4 led to the confession that he/she occupied the instant house and each obstacles on the first day for pleading on June 28, 2012, but, on May 30, 2013, Defendant 3, who was not himself/herself, did not possess the instant house and obstacles, revoked the confession by asserting that he/she occupied the instant house and obstacles. Accordingly, the Plaintiff also stated his/her written application for alteration of the purport of the claim and cause thereof on June 27, 2013, and the Plaintiff asserted that Defendant 3 occupied the instant house and each obstacles respectively, and the conjunctive Defendant 4, who was Defendant 4, as Defendant, as Defendant 3 and Defendant 4, as Defendant 4, as Defendant in preliminary, had the right to demand withdrawal from each obstacles to the instant house and each of the instant obstacles. Therefore, each of the Defendant 3 and each of the instant obstacles to the Plaintiff.

2) Defendant 3 asserts that with respect to the instant housing, Defendant 3 did not have a duty to withdraw since it occupies each of the obstacles of this case with Defendant 2’s consent.

However, according to the above 2 and 3, Defendant 1 cannot set up against the Plaintiff, a new interested party, due to the completion of the statute of limitations for the possession of the land in this case, and Defendant 2 is not a possessor with a legitimate title to the land in this case.

Therefore, Defendant 3’s assertion is without merit.

B. Determination on the claim against the conjunctive defendant 4

As seen earlier, insofar as the Plaintiff’s claim against the primary Defendant 3 is accepted in entirety, the claim against the primary Defendant 4 is without merit without merit. However, as the Plaintiff did not appeal against the part against the conjunctive Defendant 4 among the judgment of the first instance and did not appeal against the conjunctive Defendant 4, the conjunctive Defendant 4 is a party to the appellate trial, and is not in the position of the appellant or appellant, and thus, it is not indicated in the text separately.

5. Conclusion

Thus, the plaintiff's claim against the defendant 1 and the defendant 2 is reasonable, and all claims against the defendant 1 and the defendant 2 are reasonable within the above scope of recognition. The remaining claims against the defendant 1 and the defendant 2 are without merit.

In conclusion, the part against Defendant 1 and Defendant 3 in the judgment of the first instance, which affected the conclusion, is unfair, and thus, the Plaintiff’s appeal is accepted and the order is issued to the above Defendants to fulfill the obligation set forth in Disposition 1-A and Paragraph (b). The remainder of the Plaintiff’s appeal against Defendant 1 and the appeal against Defendant 2 and the primary defendant 3 are dismissed as it is without merit.

[Attachment Form 3]

Judges Gohn Jin (Presiding Judge)