If the building owned by the lessee extends over the land owned by the lessee or a third party in addition to the leased land, whether the lessee exercises his/her right to purchase the building

[Majority Opinion] In the case of land lease for the purpose of owning a false building, in a case where a building owned by a lessee is constructed over the land owned by a lessee or a third party in addition to the leased land, a claim for purchase is allowed to the lessee only for the part which can be the object of sectional ownership among the parts of the building located on the leased land.

[Dissenting Opinion] ① A owns one building extending over a lessor’s land and one of his own land; ② lease relationship between A and B terminates; ② lessee Byung owns one building on both land; and ② lease relationship between A and B terminates first, if there are two parts of the building existing on the land, to the extent that the object of sectional ownership can be the object of sectional ownership; Byung does not exercise the right to purchase as to only the parts of the building without independence in structure and use of the land, and if there are parts not recognized to be independent in use; Byung does not exercise the right to purchase as to only the parts of the building, which are indivisible with the above parts of the building; or claims for purchase as to the whole parts of the building, including the remaining parts of the building, which are indivisible with the above parts of the building, the right to purchase is jointly owned by A and C; and the right to purchase and the share, if there is a change between A and C, the right to purchase and C are determined to be the object of sectional ownership at the later time.

Articles 283 and 643 of the Civil Act

Plaintiff (Attorney Cho Jae-ho, Counsel for the plaintiff-appellant)

Defendant 1 and three others

Supreme Court Decision 92Da22435 delivered on October 9, 1992

Seoul Private District Court Decision 92Na32783 delivered on July 7, 1993

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. Summary of the reasoning of the judgment below

In full view of the evidence adopted by the court below, Defendant 1 recognized that the above part of the building site was owned by the non-party 1 and the above part of the building site owned by the non-party 203 square meters (hereinafter referred to as the "site of this case"), and that the above part of the building site of this case was owned by the non-party 1/3 neighboring to the non-party 1/3, 74.6 square meters for one roof and one roof of one house (hereinafter referred to as the "one building of this case") and 40.1 square meters for one house of the same structure constructed on the land of the non-party 2, and that the above part of the building of this case was not owned by the non-party 1/6, and that the above part of the building of this case was not owned by the non-party 1/6, and that the above part of the building of this case was not owned by the non-party 2/6, and that the above part of the building of this case was not owned by the non-party 1/6.7.

2. Judgment on the grounds of appeal

First, we judge the misapprehension of legal principles as to the exercise of the right to purchase of this case.

In the case of land lease for the purpose of owning a false building, if a building owned by a lessee is constructed over the land owned by a lessee or a third party in addition to the leased land by a lessor, it is reasonable to deem that a request for purchase is permitted to the lessee only for the part which can be the object of the partition from among the parts of the building located on the leased land.

The reasons are as follows.

A. The Civil Act does not violate the lease contract in order to preserve the residual value of the ground that exists on the site of the purpose of the contract at the time of termination of the lease contract, as well as to protect the lessee who is easy to sacrifice due to the landowner’s exclusive exercise of ownership. The lessee who has faithfully complied with the contract grants the right to demand renewal at the time of termination of the lease contract. If the lessor wishes to use the land for his/her own purpose beyond the above demand, he/she can only escape from such restriction by forcing the lessor to purchase the above ground objects such as the building installed by the lessee on the land of the purpose of the contract

Therefore, the lessor should also be guaranteed the right to freely dispose of the ground buildings and sites he/she purchased without any restriction after the purchase of ground materials after the year. It is extremely unfair for the lessor to take the location where the lessor is subject to restrictions due to the lease agreement already extinguished, considering the above legislative purpose of the lessee's right to demand the purchase, even if the lessor's right to demand the purchase of the ground materials were to be excessively restricted.

In addition, the above exceptional provisions restricting the exercise of property rights should be interpreted strictly, and it is not possible to expand the scope of the right of purchase on the ground that the object of the right of purchase on the ground that is, the object of the right of purchase on the ground that is set up on the site for the purpose of the contract should not be limited to the ground that is set up on the site for the purpose of the contract.

Therefore, if a building owned by a lessee is constructed over the land owned by a lessee or a third party in addition to the leased land owned by a lessor, the effect of exercising the right to purchase extends to the whole building, the lessor is deemed to have purchased the whole building, but the lessor has no legitimate title to the use of the land on another's land, thereby imposing liability on the landowner for removal of the building, as well as liability for damages. Therefore, compelling the lessor, who does not want to purchase, to purchase the building beyond the leased object, to purchase the building on another's land, cannot be permitted in light of the aforementioned legal doctrine.

B. In addition, even if the effect of the exercise of the right to purchase extends only to the leased building part, it cannot be allowed for the following reasons.

(1) Even if the part of a building on the leased land is not the object of sectional ownership, it is the validity of exercising the right to demand purchase, and if it is deemed that a lessor forms a co-ownership relationship with a lessee according to the size ratio, the lessor would be subject to restrictions due to the co-ownership relationship with a lessee even after the purchase of the above building shares, and as a result, it would not only form a grave legal relationship such as the judgment of the court below in its management and disposition, but also make it impossible for the lessor to arbitrarily remove the part of the building on his own land.

(2) In addition, even if the part of the building on the leased site cannot be the object of sectional ownership because of its structural failure or use independence, if it is recognized as the object of sale in the exercise of the right to purchase, the lessor, the buyer, even if purchasing the building, has no way to register the said part of the building, and making the said part of the building as the object of ownership cannot be permitted in violation of the principle of universal right.

C. Therefore, if a building owned by a lessee which is the object of the exercise of the right to purchase is constructed over the land owned by a lessee or a third party other than the leased land, it is reasonable to view that the lessee can request purchase only after the building on the leased land is the object of the sectional ownership or the object is made appropriate.

Therefore, the previous Supreme Court Decision 90Meu20357 Decided March 27, 1991 held that a party member, who has held the view that granting a right to purchase part of a non-owned building as an object of the exercise of the right to purchase the non-owned building, unlike the previous one, is allowed to exercise the right to purchase the non-owned building, and that a right to purchase the non-owned building is allowed to be located in another's land beyond the scope of the leased object. This decision is to be modified.

D. According to the records of the appraisal report (record 121 pages) compiled into the records of the health stand, the building of this case can be seen as composed of the gate, the kitchen, the kitchen, the kitchen, the room, and the house (no material from which specific purposes can be known). Among them, the part of the building constructed on the building of this case on the site of this case cannot be an independent object of ownership, which is a 47 square meters of the floor and the room among the 74.6 square meters of the building of this case 1 and the 74.6 square meters of the floor and the room of this case, a one room, a kitchen, the kitchen, and the 40.1 square meters of the floor and the 240.1 square meters of the building of this case.

Therefore, the court below should have rejected the defendant 1's claim for purchase right according to the above condition, but the court below did not reach this point, which affected the conclusion of the judgment by misunderstanding the legal principles as to the purchase right.

Therefore, it is obvious that the judgment of the court below cannot be maintained without examining the remaining grounds of appeal, and the above opinion is with the assent of all Justices other than the dissenting opinion, and it shall be reversed and remanded to the court below.

3. Dissenting Opinion by Justice Kim Jong-soo, Justice Lee Yong-hoon, and Justice Lee Lee Jae-soo is as follows.

A. In a case where a building owned by a land lessee is extended over several parcels of land owned by a lessor and a lessee, or a lessor and a third party, and the part existing on the land owned by the lessor alone is not independent in structure and use, and thus it is impossible to become the object of sectional ownership, the right to purchase the building that only part of the building on the land owned by the lessor cannot be recognized as belonging to the lessor because of the lack of independence in structure and use, in light of the special nature of the building that can be the object of transaction, only if there is independence in structure, structure, and use.

However, the purpose of legislation of the right to purchase a building stipulated in Article 643 of the Civil Code is to recover the remaining value of the building by the lessee of the land who is the owner of the building and to prevent the national economic loss caused by the removal of the building, and the legal system that does not restrict the lessor's right to refuse to renew, such as Korean Civil Code, has the function of indirectly compelling the existence of the right to lease.

Therefore, even in special cases such as this case where a building of a land lessee exists over several parcels of land where the owner is different, no problem exists as to the relation of the use of the building site after the exercise of the right to demand purchase, and if it is possible to look at the legislative intent of Article 643 of the Civil Act by allowing the exercise of the right to demand purchase by a lessee in a way that does not cause any damage to the land lessee as much as possible, it is not necessary to limit only the part of the building existing on the land owned by the lessor to the object of the right to demand purchase. Therefore, it is difficult to accept the opinion of the majority opinion that permits only the part existing on the land owned by the lessor to be the object of the right to demand purchase by making it an absolute proposition that only the part on the land owned by the lessor can be the object of the right to demand purchase, which is contrary to the legislative intent of Article 643

In order to maximize the development of construction technology and the use of land, many buildings exceeding the land price are constructed at all times, and the above buildings are not constructed only on the land owned by themselves or on the land of one parcel. However, as the majority opinion, only if the wall which divides the sectional ownership of a building conforms with the boundary of the land accurately, a claim for purchase can be exercised. In other cases, if the part which cannot be the object of sectional ownership among the parts existing on the land owned by the lessor, regardless of the size, form and value of sectional ownership, is to be removed, if the removed part is situated in the middle of an aggregate building, the other half part on the land owned by the lessee or a third party, which is the object of sectional ownership, and the entire one of the buildings which common use of electricity, machinery, etc., as well as the other half part on the land owned by the lessee or the third party, which is the object of sectional ownership, is to be removed.

In addition, if it is impossible to remove the part located in the middle of an aggregate building to the safety problem of a building, it is difficult to say that the majority opinion will allow the renewal of the land lease to the part which is the object of the partitioned ownership located in the middle, and if so, what is the basis for the renewal of the land lease.

As the majority opinion, it is unclear whether or not the lessee can exercise the right of purchase after remodeling the building in a state suitable for the object of the partitioned ownership, but if the building is divided according to the boundary of the land, the utility value of the building may be significantly reduced or valueless. Because of the safety problem of the building, it is considerably impossible for the lessee to remodel the building in itself due to the safety problem of the building, and it is still unclear whether the lessee can be determined that even if the building is remodeled in accordance with the boundary of the land in advance to exercise the right of purchase, the altered part may be the object of the divided ownership from the court. Therefore, there is a problem that harms the legal stability of the lessee.

B. Therefore, we would like to make a lessee’s ownership of one building extending to the lessor’s land and one of his own land; (2) lessee’s lease of the land between A and B is terminated; (3) lessee’s lease of the land between A and B is one building on both land; and if the lease relationship between A and B is terminated first, inasmuch as there is not recognized independence in structure and use of the part of the building existing on the land, to the extent that it can be the object of sectional ownership; and (4) Byung’s purchase right is not exercised on only a part of the building that has no independence in use; and (3) the other parts of the building, including the other parts of the above land, which form an integral part of the sectional ownership, should be purchased from the whole section of exclusive ownership; (4) lessee’s purchase right should be terminated; and (5) lessee’s purchase right should be determined from the above section of exclusive ownership to the co-owner’s co-owner’s co-ownership or co-ownership’s share; and (2) co-owner’s purchase right should be determined to the above part.

In light of the above, the use, management, or disposal of the co-owned building does not differ from the case of the co-owned property in general, and the co-owned share will coincide with the ratio of the area occupied by one building. Therefore, it is unnecessary to consider a separate land use relationship for maintaining the co-owned share.

C. The majority opinion argues that the lessor cannot freely use and dispose of the building despite the termination of the lease relationship, and that the part of the building on his own land cannot be arbitrarily removed and that it is unreasonable to exercise free ownership of the land. Thus, the lessor's right to purchase is excessively restricted, and the system itself is a system premised on lessor's sacrifice for the protection of lessee and national economic interest. It is common that the lessor of the land for the purpose of ownership of a building leases the land to a certain extent and the limitation of the ownership due to the existence of the building owned by the lessee. Foreign legal system moves toward the direction of forcing renewal of the lease to protect lessee for the purpose of ownership of the building. If one building which belongs to the object of divided ownership on his own land, belongs to the majority opinion, the co-owner of the building cannot claim for removal of the building at the market price in light of the purport of Article 8 of the Multi-Unit Building Act to the extent that the landowner's right to request purchase is unreasonable, and the one who claims removal of the building's right to request removal of the land can be seen as an unreasonable one's right.

4. In conclusion, we agree to abolish the Supreme Court Decision 72Da341 Decided May 23, 1972 by the party members who recognized the right to purchase part of a building regardless of whether it can be the object of sectional ownership, but we consider that the opinion of the majority opinion that only the part of the building on the lessor's land which can be the object of sectional ownership can be the object of the right to purchase regardless of the removal of other parts, is not reasonable, and that the legislative intent of the right to purchase and the interests of the lessor that recognized the method of recognizing the above-mentioned shared relation are most harmonized with the legislative intent of the right to purchase and the interests of the lessor.

Chief Justice Yoon-hee (Presiding Justice) (Presiding Justice), Kim Jong-soo, Justice Kim Jong-ho, Justice Kim Jong-ho, Justice Park Jong-ho, and Justice Lee Jae-hee-hee, Justice Lee Jong-hee, Justice Lee Jae-hee, Justice Lee Jong-hee, and Justice Lee Jae-hee