Yeongdeungpo Development Co., Ltd. (Law Firm Apex, Attorneys Park Gyeong-soo et al., Counsel for the plaintiff-appellant)

Lot shopping Co., Ltd. (Law Firm LLC, Attorneys Yoon Byung-chul et al., Counsel for the plaintiff-appellant)

October 30, 2014

Seoul Central District Court Decision 2013Gahap47939 Decided October 10, 2013

1. It shall be amended as described in paragraphs 2 and 3 of the judgment of the first instance, including the preliminary claim added at the trial and the amended request for extradition.

2. The part of the claim for the execution of the procedure for ownership transfer registration among the lawsuits against the main claim of this case is dismissed.

3. The defendant shall be the plaintiff.

A. As to each real estate listed in the separate sheet No. 1, the registration procedure for destruction due to non-existence is conducted;

(b)with respect to the building status map of Attached 3 among the two floors of the real estate listed in the annex 2 list;

(A) 228.72 square meters on board, which connects each point of (1), (2), (3), (4), (5), (6), and (1) with the indication of the annexed drawing Nos. 4;

(B) 601.8 square meters on board, which connects each point of (7), (8), (9), (10), and (7) with the indication of the attached drawing No. 5;

(C) 97.27 square meters on a ship which connects each point in the attached Form 6 drawings indication (11), (12), (13), (14), and (11);

(D) 357 square meters on board, which connects each point of (15), (16), (17), (18), (19), (20), and (15), with the indication of Attached 7’s drawings;

(E) In the ship that connects each point of (21), (22), (23), (24), (25), (26), (27), (28), (29), (29), (30), (31), (32), (33), and (21) to each point of the annexed 8 drawings;

(f) 41.64 square meters on board, which successively connects each point of (34), (35), (36), (37, (38), and (34), with the indication of Appendix 9;

(G) 133.52 square meters on board, which connects each point of (39), (40), (41), (42), and (39), with the indication of the Schedule 10;

(h) 66.24 m24 m2 in a ship which connects each point of (43), (44), (45), (46), (47), (48), and (43 in sequence, with the indication of the annexed 11 drawings;

India, respectively.

4. 30% of the total litigation costs shall be borne by the Plaintiff, and 70% by the Defendant respectively.

5. Paragraph 3-b. above may be provisionally executed.

1. The primary purport of the claim

(a) With respect to each real estate listed in the separate sheet No. 1 list, the procedure for the registration of ownership transfer based on the restoration of real name will be implemented;

(b) It is as set forth in Article 3-2(b);

2. Claim No. 1(a) of the conjunctive claim

(a) paragraph 1(a) of this Article will be as follows:

B. Preliminary, it is confirmed that each real estate listed in the separate sheet No. 2 is owned by the Plaintiff.

(The plaintiff added the conjunctive claim to the court for the first time, and amended the purport of the claim.)

The judgment of the first instance shall be revoked.

The claim No. 1-A(a) and the defendant shall deliver to the plaintiff each real estate listed in the separate sheet No. 1.

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties, or in full view of the respective entries in Gap evidence 1, 2, and 3 (if the parties have a serial number, including its serial number; hereinafter the same shall apply), Eul evidence 1, and the whole purport of pleadings, unless otherwise specified:

A. On September 16, 2003, the Plaintiff newly constructed the Suwon-si ( Address omitted) ○○○○○○ Building (hereinafter “instant commercial building”). As to the 31 store (based on the occupied portion, the part listed in Section 3-b of the Disposition No. 3-B of the instant commercial building) listed in the separate sheet No. 1, which is part of the 2nd shop of the instant commercial building, the Plaintiff completed the registration of ownership preservation in each Plaintiff’s name on September 16, 2003.

B. Among each of the instant stores, each of the stores listed in [Attachment 1] Nos. 1, 2, 16, 17, 19, 20, 25, 26, and 27 is sold to Nonparty 1 on June 12, 2007 upon the application for voluntary auction by the Suwon Livestock Industry Cooperatives (the Suwon District Court Decision 2006 Doz. 16269), and each of the instant stores was sold in sequence to the Defendant on February 9, 2010, and the registration of ownership transfer under the name of the Defendant was completed.

C. Among each of the instant stores, each of the stores listed in paragraphs 3 through 7 of the attached Table 1 in the separate sheet was sold to Nonparty 2 on July 20, 2007 and each of the Defendant’s respective registrations of ownership transfer under the name of the Defendant was completed on February 9, 2010 after the date of Ssari, which was sold to Nonparty 2 on July 20, 2007.

D. Among each of the instant stores, each of the stores listed in Tables 11 and 29 of the separate sheet No. 1 of the separate sheet No. 1 among the instant stores is sold to Nonparty 3 on June 12, 2007 upon the application for voluntary auction by the new bank, and each of the instant stores under the name of the Defendant was sold to the Defendant on February 9, 2010 after the SI test.

E. Among each of the instant stores, each of the stores listed in attached Table 8, 9, 10, 12 through 15, 18, 21 through 24, 28, 30, and 31, among the stores in this case, was sold to the Defendant on February 9, 2010 and each of the ownership transfer registration in the name of the Defendant was completed on February 9, 2010 after the public auction was conducted on February 14, 2008 due to the disposition on default of the right of the Suwon City. (hereinafter “each of the instant transfer registration in the name of the Defendant with respect to each of the instant stores”).

F. The Defendant currently occupies each of the instant stores and operates △△△△△△△△△, a toy large store.

2. Summary of the plaintiff's assertion

A. The main claim

Each of the stores of this case does not meet the requirements of sectional ownership, and thus, registration of ownership preservation has been completed even though sectional ownership was not established. Therefore, registration of ownership preservation is null and void, and registration of ownership transfer in the name of the defendant who is based on such requirements is null and void.

Therefore, as to each of the instant stores, the nominal owner of the registration of ownership transfer, and the Defendant, who is the unauthorized occupant of each of the instant stores, is obligated to implement the registration procedure for ownership transfer based on the restoration of real name as the new acquisitor, and to deliver each of the instant stores, which are the occupied parts, to the Plaintiff.

B. The part of the conjunctive claim on the claim for performance of the transfer registration procedure

(1) First and Second, each of the instant stores is a sectioned building, and the Defendant is liable to implement the registration procedure for destruction of each of the instant stores to the Plaintiff.

(2) Preliminaryly, the Plaintiff asserted ownership on the ground that the Plaintiff was the genuine owner of each of the instant stores, and thus, the Defendant asserted ownership on the ground that the Plaintiff was the nominal holder of the registration.

3. Determination on this safety defense

A. As to the entire lawsuit of this case

The defendant asserts that the plaintiff filed the lawsuit of this case solely with the intention of coercing the defendant and treating seling seling 129 out of 174 stores of the second floor of this case, including each of the stores of this case, in order to make the plaintiff possess only 129 units among the 174 units of the commercial building of this case by the so-called "marbing method", which does not mean that the plaintiff would withdraw the sarbing, and unjust enrichment (the defendant does not expressly assert that the lawsuit of this case is against the good faith principle, but is going ahead in light

However, there is no other evidence to acknowledge the above assertion by the defendant, and each of the stores of this case did not meet the requirements of sectional ownership and completed registration of preservation of ownership invalid in the name of the plaintiff without satisfying the requirements of sectional ownership, and the registration of transfer of ownership becomes null and void thereafter, the victim suffered losses due to the non-performance of the damage shall be held liable for damages based on the degree of responsibility of the plaintiff as to the damage, and it is difficult to view that the plaintiff's claim for invalidity of ownership transfer registration as the original purchaser of each of the stores of this case and filing the lawsuit of this case

Therefore, this part of the defense is without merit.

B. As to the claim for the enforcement of the procedure for ownership transfer registration among the primary claim

The defendant asserts that there is no legal interest in seeking the registration of ownership transfer with respect to the above claim portion.

Therefore, if both the registration of ownership transfer in the name of the defendant and the registration of ownership transfer in the name of the former owner are null and void as alleged by the plaintiff, the registration of ownership transfer that the plaintiff will win as the cause of the claim for the recovery of real name shall also be null and void. Therefore, the plaintiff's lawsuit on the claim for the registration of ownership transfer in this part shall not be exempt from the lack of interest in the lawsuit

Therefore, this part of the defense is justified.

C. As to the first preliminary claim

The defendant asserts to the effect that this part of the lawsuit is unlawful, since each of the stores in this case is not subject to the claim for registration of loss because the store in this case was destroyed or lost, as to the claim for registration of loss of the primary claimant.

Therefore, in a case where a sectional ownership registration of a building exists in the physical form, but the sectional ownership registration is null and void because it does not meet the requirements of sectional ownership, there is no provision of the United Nations on the registration of real estate in accordance with the substantive relationship. In other words, the Registration of Real Estate Act only provides for the registration procedures in the case of the subdivision, subdivision, and annexation of a building under Article 41, and it is silent about the so-called "continction" that separate sections lose their independence. It is not desirable to leave any disagreement between the registration relationship and the substantive relationship against the owner of the right or the stability of legal relations. Furthermore, even if the registration for the purpose of sectional ownership of a building that fails to meet the requirements of sectional ownership, it cannot be said that there is no provision different from the registration for the destroyed or lost building (see, e.g., Supreme Court Decision 92Da3151, Apr. 24, 199), and thus, it is difficult to view that the Plaintiff’s respective requirements of the registration of real estate under Article 4 of Real Estate Act are null and void.

Therefore, this part of the defense is without merit.

4. Judgment on the merits

(a) Part of the claim for the performance of the registration procedure for loss (the first preliminary claim);

(1) Legal principles

If a part of one building intends to become the object of sectional ownership, its part must be independent from other parts in terms of its use, structure, and structure, and there may be differences in the strictness of structural judgment depending on the situation of its use or use. However, structural independence is required because it is necessary to clarify the scope of physical control over the object which mainly becomes the object of ownership. Thus, structural independence cannot be said to exist if the scope of the object of sectional ownership can not be determined by division of structure. Moreover, a part of a building that fails to meet physical requirements, which is the object of sectional ownership, is registered as an independent sectional ownership under the building management ledger, and is registered as a separate sectional ownership, and is registered as the object of sectional ownership under the building management ledger and paid the purchase price after obtaining permission for sale based on such registration, even if its registration is in itself null and void (see, e.g., Supreme Court Order 2009Ma149, Jan. 14, 2010; Supreme Court Order 9Da4969, Apr. 6, 1996).

(2) Facts of recognition

If Gap evidence Nos. 1 through 4, 7 and 8 (the evidence No. 5 is part of Gap evidence No. 4), and the testimony of non-party 4 were added to the whole purport of pleadings, ① each of the stores of this case is indicated as being divided into real estate listed in the separate sheet No. 1, such as the current status of each of the stores of this case, but each of the stores of this case was indicated as if they were divided into real estate No. 1, but at the time of completion of each of the respective registrations of preservation of ownership of this case, it was marked as a color tape with 1.3 to 1.4m high, and it was easy to move to the above 20th 7th 7th , the above 10th 7th 2th 7th 7th 7th 7th 7th 7th 7th 7th 7th 7th 7th 7th 10 2th 10th 2th 2th 7th 2th 2th 10 2th 2th 3th 3th 3th 7th 2.

(3) Determination

In light of the above facts in light of the above legal principles, each of the stores of this case can be seen to have not been installed with a fixed boundary mark or classification facility at the time of each registration of initial ownership, and in light of the above facts, the mere fact that each of the stores of this case was sold through the auction procedure acknowledged in the above facts in light of the above facts, it is difficult to deem that each of the stores of this case after each of the above facts was registered of initial ownership as the object of divided ownership, and it is difficult to deem that each of the above facts was in accord with the substantive relations, and there is no data or circumstance to deem that each of the registration of initial ownership or each of the transfer of ownership in this case based on each of the above facts is valid. Meanwhile, according to the basic facts, the plaintiff is the new constructor of each of the stores of this case as the original purchaser

In light of the above circumstances, the registration of transfer of ownership in this case is null and void, and the plaintiff, the original acquisitor of the store in this case, shall be deemed to have interfered with the exercise of rights as the owner. Thus, the defendant is obligated to implement the registration procedure for destruction and loss for each of the stores in this case (see Supreme Court Decision 73Da396, Jul. 24, 1973; Supreme Court Decision 73Da396, Jul. 24, 1973; and on the other hand, the plaintiff's preliminary claim in this part is accepted, and therefore, the remaining part of the plaintiff's preliminary claim 2, excluding the claim for

B. Determination as to the part on the request for extradition

According to the facts acknowledged earlier, the Plaintiff is the original acquisitor of each of the instant stores, and the Defendant is the occupant of each of the instant stores, and the Defendant is obligated to deliver each of the instant stores to the Plaintiff, barring any other circumstance.

5. Conclusion

Therefore, the part concerning the plaintiff's claim for the execution of the procedure for ownership transfer registration among the lawsuits against the plaintiff's main claim of this case is unlawful and dismissed. The plaintiff's claim for the main claim of this case and the preliminary claim of this case are accepted as reasonable. Since the judgment of the court of first instance is improper in some conclusion, it is so decided as per Disposition by the court of first instance including the additional or modified claim in the court of first instance.

[Attachment Omission]

Judges exhaustion fever (Presiding Judge) Kim Jong-chul

Note 1) It means a conceptual absence, not a physical absence, which does not meet the requirements of sectional ownership.