[1] Where a sectional owner disposes of a right to use site separately from a section for exclusive use before Article 20 of the Addenda to the Act on Ownership and Management of Condominium Buildings ( April 10, 84) is applied pursuant to Article 4 of the same Act, the validity thereof (effective), and where the section for exclusive use and the right to use site separated as above are disposed of after the application of the same Article (effective)

[2] Whether the owner of a section of exclusive ownership without a right to use the site shall return the amount equivalent to the rent for the area corresponding to the portion to be registered as the site ownership of that section of exclusive ownership to the owner of the relevant site’s unjust enrichment

[1] Article 20 of the Act on Ownership and Management of Condominium Buildings, Article 4 of the Addenda (4 April 10, 84) / [2] Article 741 of the Civil Act

[2] Supreme Court Decision 91Da40177 decided Jun. 23, 1992 (Gong1992, 2242)

Emymoral Symorio corporation

Defendant (Law Firm Appex, Attorneys Choi Pap-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na9926, 933 decided July 21, 2010

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

The grounds of appeal are examined.

1. Article 20 of the Act on the Ownership and Management of Aggregate Buildings, enacted by Act No. 3725 on April 10, 1984 (hereinafter “Aggregate Buildings Act”) provides that “The right of the sectional owner to use the site shall be subject to the disposition of his section of exclusive ownership (Paragraph 1). The sectional owner shall not dispose of the right to use the site separately from his section of exclusive ownership: Provided, That this shall not apply where otherwise prescribed by the regulations (Paragraph 2).” Article 1 of the Addenda of the same Act provides that “This Act shall enter into force one year after its promulgation,” and Article 4 provides that “The provisions of Articles 20 through 22 of the Act on the Ownership and Management of Aggregate Buildings and the right to use the site to the existing section of exclusive ownership at the time this Act enters into force shall apply from the date two years have elapsed since the date of its enforcement.

According to the above provision, it is valid to dispose of the right to use site separately from his section of exclusive ownership before the provision of Article 20 of the Addenda to the Act on the Ownership and Management of Aggregate Buildings is applied, and thereafter, Article 20 of the Act on the Ownership and Management of Aggregate Buildings is not applied retroactively and thus a separate disposition is not invalidated. If the right to use site was disposed of separately from the section of exclusive ownership before the application of Article 20 of the Act on the Ownership and Management of Aggregate Buildings, even if the section of exclusive ownership and the right to use site are disposed of separately after the application of Article 20 of the Act on the Ownership and Management of Aggregate Buildings

According to the reasoning of the judgment below, the non-party, on March 3, 1979, completed the registration of ownership transfer of 1, 2, 3, 101 or 603 units of the above ground-based building (each 5th floor), 3, 102, 103, 202, and 202 (the aggregate of these 7.6%) owned by the non-party, 2, 3, 3, 4, 106, 3, 4, 106, 3, 10, 205, 4, 106, 205, 3, 205, 196, 4, 205, 196, 30, 205, 196, 4, 30, 205, 196, 30, 197, 205, 30, 196, 204, 3,27, 3

Based on these factual relations, the court below held that Article 20 of the Aggregate Buildings Act applies from April 10, 1985 to the date of entry into force under Article 4 of the Addenda of the same Act, and the share of the site necessary to own the building of this case (hereinafter referred to as "share of the site of this case") was already separated from the building of this case before then disposed of, and accordingly, the international agricultural and forestry corporation, a sectional owner of the building of this case, did not own the share of the site of this case, and Article 20 of the above Act provides that the sectional owner of the building of this case shall comply with the disposition of his section of exclusive ownership. Thus, the court below rejected the defendant's assertion that the above share of the site of this case cannot be acquired by the defendant against the above Article 20 of the above Act because it did not have the right to the sectional owner of the building of this case as to the ownership of the site of this case, and that the plaintiff's share of the above site of this case cannot be viewed as invalid as the plaintiff's share of this case's building of this case.

The above fact-finding and determination by the court below is just in light of the records and the above legal principles, and there is no error in the misapprehension of legal principles as to the scope of application of section for exclusive use and right to use site under Article 20 of the

2. Since the owner of a section of exclusive ownership without any legal ground occupies the site of the said section of exclusive ownership without the right to use the site, he/she obtains unjust enrichment equivalent to the rent for the area corresponding to the portion to be registered as the site ownership of the said section of exclusive ownership among the said site. Since the owner of the share to be registered as the site ownership suffered damages equivalent to the same amount, barring any other special circumstances, the owner of the said section of exclusive ownership who has no right to use the site has the obligation to return the unjust enrichment to the owner of said portion of exclusive ownership (see, e.g., Supreme Court Decision 91Da401

The court below is just in calculating unjust enrichment according to the result of the commission of appraisal of rent in the court of first instance, and there is no evidence to deem that the above appraisal of rent was illegally calculated.

In light of the records, the court below's rejection of the defendant's assertion that the possessor in good faith has the right to receive negligence as a possessor in good faith is justified, and there is no error of law such as

3. As to the Defendant’s assertion of prescriptive acquisition, the lower court determined that the presumption that the Defendant occupied the instant share of the site as its owner was broken, as it is well known that the Defendant did not meet the legal requirements for the acquisition of ownership, such as sale and purchase, with respect to the instant share of land in the purchase of the instant building without satisfying the legal requirements for the acquisition of ownership. In light of the records, the lower court’s determination is just and acceptable. In so doing, the grounds of appeal disputing this issue are rejected.

4. Therefore, the appeal is 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.

Justices Shin Young-chul (Presiding Justice)