(영문) 서울중앙지방법원 2018. 3. 29. 선고 2016가단107286 판결

1. Attached Form 6's "Defendant" shall pay to the Plaintiff (Appointed Party), the Defendants, and the designated parties, the amount calculated by applying the respective rates of money indicated in the attached Form 6's attached Form 6' to the Plaintiff (Appointed Party), the amount of money listed in the attached Form 6's attached Form 6's attached Form 5 per annum to the corresponding date of service of the complaint from September 2, 2016 to the corresponding date of service of the complaint and the amount of money listed in the attached Form 6's attached Form 15% per annum to the date of full payment from the following day to the date of full payment, and the amount calculated by applying the ratio of money listed in the attached Form 6's attached Form 6's attached Form to the Defendant (Appointed Party) from September 2, 2016 to the date of possession at the end of 1,685 square meters before the Defendant's Appointed Party or the share of co-ownership of the Plaintiff (Appointed Party) to each of the following dates

2. [Attachment 7] Defendant (Appointed Party), Defendants, and Defendant Appointors shall pay to Plaintiff Appointors the money calculated at the rate of each money indicated in the separate sheet No. 7 in the separate sheet No. 5% per annum until September 2, 2016 to the corresponding date set forth in the separate sheet No. 7’s service date, and the amount calculated at the rate of 15% per annum from the next day to the date of full payment, and ② from September 2, 2016 to the date of full payment; ② from September 2, 2016 to the Defendant’s column No. 7’s “Defendant”; and ② from September 2, 2016 to the date of full payment; or from September 2, 2016 to the date of full payment to the Defendant’s (Appointed Party); and each of the money calculated at the rate of each money stated in the separate sheet No. 7’s co-ownership on the said land by the date of occupancy expiration

3. Each of the remaining claims against the Plaintiff (Appointed), the Defendant (Appointed Party), the Defendants, and the Defendant Appointeds are dismissed.

4. The costs of lawsuit shall be borne by the Defendant (Appointed Party), the Defendants, and the Defendant Appointeds.

5. The above paragraphs 1 and 2 can be provisionally executed.

Purport of claim

Except for the amount calculated at the rate of 20% per annum from the day after the delivery of a copy of each complaint of this case to the day of complete payment, paragraph (1) of this Article shall be as follows.

Reasons

1. Facts of recognition;

A. On January 12, 2002, U-Gun Housing Association, a reconstruction association organized for reconstruction of U-Gun Housing, started construction work on the ground of five lots including 1,685 square meters (hereinafter “instant land”) on the ground, including 1,685 square meters (hereinafter “the instant apartment”). On January 12, 2002, U-Gun Housing Association, a reconstruction association organized for reconstruction of U-Gun Housing, started construction work on the 1st underground floor and 8th floor reinforced concrete apartment building (22 households among total 41 households, 19 households, and hereinafter “the instant apartment”).

B. Meanwhile, the members of the above U-N Housing Association were the right holder of 1/22 of the above five parcels of land. From October 2000 to December 2, 200, the members agreed to reconstruct the apartment building of this case on each of the above five parcels of land, and received a loan for moving expenses from the National Bank of Korea (Korea Housing and Commercial Bank Co., Ltd. before the modification, hereinafter “Korea Housing and Commercial Bank”) during the period from October 1, 200 to December 2, 200, the members of the above U-N Housing Association set up a right to collateral security of 39,000

C. On May 16, 2002, the members of the above U regional housing association trust one-half of their respective shares in each of the above lands to the above U regional housing association and completed their motive.

D. The instant apartment was completed on November 28, 2003, and the members of the said U-Regional Housing Association moved into the said apartment complex around that time. Of the members, V was 705 (including shares) and W was 503 (including shares).

E. However, as V and W failed to repay the moving expenses loans to the National Bank, there was a voluntary auction based on the right to collateral security as stated in paragraph (2) above with respect to each portion of the instant land, which was trusted to the said U-Regional Housing Association (U.S. District Court Sungnam Branch X), and the Posta Co., Ltd purchased the portion of W’s trust on December 22, 2006, Y, and Z on February 9, 2007, respectively.

F. Meanwhile, on April 19, 2007, the procedure for compulsory auction was commenced as Suwon District Court's Sung-nam Branch AAA upon the application of Jinnam Branch Construction of a stock company, which was a Si 705 of the apartment of this case, which was sold in lots V. On the same day at the request of the court of execution, the ownership registration motive was completed in the name of the above U-N Housing Association on the same day. On April 10, 2008, the Plaintiff (Appointed Party) acquired the ownership registration mold in the future of the Plaintiff (Appointed Party) on April 11, 2008 after paying the sale price in full and acquiring the ownership under the above 705.

G. On May 15, 2008, the Plaintiff (Appointed Party) purchased 30.574/1685 shares of the instant land, and AB completed the registration of ownership transfer on July 2, 2008, respectively, by purchasing 46.016/1685 shares of the same day from the Business List Co., Ltd.

H. Meanwhile, on May 13, 2011, the Plaintiff Selected purchased 46.016/1685 shares from AB and completed the registration of ownership transfer on the same day, and AB transferred the Plaintiff (Appointed Party)’s claim against each of the instant apartment units to the Plaintiff on the same day.

I. Meanwhile, the Plaintiff (Appointed Party) asserted that he/she acquired the ownership of the instant apartment No. 705 during the compulsory auction procedure for the above AA compulsory auction and acquired the right to use the site within that section of exclusive ownership. On January 15, 2010, the Plaintiff (Appointed Party) filed a lawsuit against the said U-N Housing Association on the claim for ownership transfer registration of the shares of 46.016/1,910 out of five parcels, including the instant land, in Suwon-nam Branching 2010dan1790, each of the five parcels, including the instant land. The said court rendered a favorable judgment of the Plaintiff on February 10, 201, and the said U-N Housing Association appealed as the Suwon District Court 201Na8147, but the said Court dismissed the appeal of the said U-N Housing Association on November 8, 2011, and the said judgment became final and conclusive on December 1, 2011.

(j) As of the date of the closing of argument in the instant case, the Defendant (Appointed Party) and the Defendants, and the Defendant (Appointed Party) owned or owned each defense room for the same period as indicated in Attached 3’s holding period 1 as indicated in Attached 3’s holding period 1 as of the date of the closing of argument in the instant apartment. (The Defendant (Appointed Party) and the Defendant (Appointed Party) owned or owned the respective defense room for the same period.)

【Non-contentious facts, Gap 2, 3, 4, 5, 7, 8, Eul 1 through 16, and the purport of the whole pleadings

2. Determination on the cause of the claim

A. The plaintiff (appointed) and the plaintiff's representative

The Plaintiff (Appointed Party) and the Plaintiff’s appointed party (hereinafter collectively referred to as the “Plaintiff”) hold 30.574/1,685 shares and 46.016/1,685 shares of each of the instant land. In general, if multiple people own land, co-owners may use and benefit from the land according to their respective shares. Unless otherwise agreed by the co-owners, the Defendant (Appointed Party) and the Defendants, and the Defendant (Appointed Party) have no exclusive use and benefit from the specific portion of co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ and co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ co-owners’ share.

B. Determination as to Defendant C, J, K, P, and D’s assertion

1) Description of claims: as described above 1. and 2. A. as described in column

2) Defendant C, J, K, and P: Articles 208(3)2 and 150(3) (a) of the Civil Procedure Act

3) Defendant D: Article 208(3)3 of the Civil Procedure Act (Decision by public notice)

C. Determination as to the remaining Defendants, Defendant (Appointed Party) and Defendant Appointeds’ assertion

1) Relevant legal principles

In a case where the sectional owners of one building own the site of the building at the time of the initial purchase of the building in lots within the co-ownership share of the building site, barring special circumstances, such as the existence of separate regulations, each sectional owner has a legitimate right to use the entire site according to the use of the building site regardless of the share of co-ownership in the building site. Thus, each sectional owner may not seek return of unjust enrichment on the ground of a difference in the share of co-ownership in the site between sectional owners. However, if there are co-owners, other than co-owners of the building site, the site can be used, profit-making, and management in accordance with the general legal principles as to the co-ownership, barring any special circumstances (see, e.g., Supreme Court Decision 2012Da119870, Jun. 26, 2014).

In full view of the aforementioned legal principles, even if a sectional owner of one building is a sectional owner, if he/she succeeds to and acquires his/her co-ownership from other co-owners on a site other than the sectional owner, separate from the site that he/she acquired at the time he/she originally acquired for the ownership of that section of exclusive ownership, he/she may claim a return of unjust enrichment against other sectional owners based on his/her own co-ownership right separately acquired (see Supreme Court Decision 2009Da76522, 76539, Jul. 14,

2) Determination

A) First, as to the Plaintiff’s assertion, since the Plaintiff (Appointed Party) purchased the above shares of acquiring them from the head of the company, and completed the registration of ownership transfer, the Plaintiff (Appointed Party) has the right to use and profit from all of the instant land in proportion to the instant co-ownership shares. However, as to the instant part of the instant apartment, in which the Defendant (Appointed Party) and the Defendants, and the Defendant (Appointed Party) have constructed the instant apartment building on the land, and the Defendant (Appointed Party) specifically used and profited exclusively from the sectional ownership, the Plaintiff (Appointed Party) suffered damages from the failure to use and profit from the instant land based on the share of acquisition. Accordingly, even if the Plaintiff (Appointed Party) acquired the ownership of the instant apartment No. 705 prior to the purchase of the instant shares, the instant shares of acquiring the instant apartment No. 705 are separate shares from the right to use the site, and the Defendant (Appointed Party) and the Defendants, the Defendants (Appointed Party) are obligated to return the pertinent portion of the Plaintiff’s share of unjust enrichment corresponding to the pertinent portion of the Plaintiff (Appointed Party).

B) Meanwhile, in the case of AB, Defendant (Appointed Party) and the remaining Defendants, and Defendant (Appointed Party) are the site for the part of exclusive ownership of the apartment building of this case, and they use and gain profit from the land of this case without any title equivalent to the AB’s share in the acquisition by transfer (share) that is not the sectional owner of the building of this case. The fact that the above AB transferred to the Plaintiff (Appointed Party) the claim for unjust enrichment equivalent to the rent for the Defendant (Appointed Party) and the Defendants, and the Defendant (Appointed Party) is as seen earlier. Therefore, Defendant (Appointed Party) and the remaining Defendants, and the Defendant (Appointed Party) are liable to pay the Plaintiff (Appointed Party) the amount of unjust enrichment equivalent to the rent for AB.

C) Next, as to the Plaintiff’s assertion, the Health Unit, the Defendant (Appointed Party) and the remaining Defendants, and the Defendant (Appointed Party) are the site for the exclusive ownership of the instant apartment building owned by each of their respective owners, and they use and benefit from the Plaintiff’s co-ownership share (AB) of the Plaintiff, not the sectional owners of the instant building, without any title. Therefore, they are obligated to return unjust enrichment equivalent to the rent that was incurred therefrom to the Plaintiff’s Appointed.

3) Determination on the defendant et al.'s defense

A) As to the defense that the acquisition of the instant shares is null and void

Defendant (Appointed Party), Defendant G, E, H, L, M, and the instant apartment regardless of the registration or record, the sectional ownership was established on November 28, 2003. There is no provision allowing the separate disposition of section for exclusive use and the right to use site. The Plaintiff (Appointed Party) and the Plaintiff (Appointed Party) have acquired part of the instant apartment against Article 20 of the Act on the Ownership and Management of Aggregate Buildings, which prohibit the disposition of the right to use site separately from section for exclusive use, although they were well aware that the ownership of the first W was the right to use site for the purpose of 503, the ownership of the first W-W site was the right to use site.

However, each entry in Gap evidence 8, Eul evidence 1 and 7 is admitted as follows:

(2) Of the members of the U regional housing association, the mortgage was already established prior to the registration of trust as to the above trust shares as to the above trust shares, and the voluntary auction as to the above trust shares was conducted on June 27, 2006 by Suwon District Court X-nam Branch, and on December 22, 2006, 1/22 shares owned by W, Y, Z on February 9, 2007, 1/22 shares owned by the above members of the association. 3) Since the above mortgage was established prior to the occurrence of the right to use the land, V shares were purchased from the above members of the association as to the above trust shares, and 50 shares owned by the plaintiff 6 of the aggregate building as to the above trust shares, 50 shares owned by the court below as to the above trust shares, 1/60 shares owned by the plaintiff 6 of the aggregate building and 60 shares owned by the above part of the right to use the land, 50 shares owned by the plaintiff 6 of the auction procedure.

B) Determination as to the short-term extinctive prescription defense

Defendant G argues that the period of sectional ownership between May 8, 2008 and August 4, 2010 among the apartment of this case is from May 8, 2008 to that of August 4, 2010, Defendant G already terminated by the statute of limitations since the Plaintiff’s claim for the fee for the use of the instant land was subject to the short-term extinctive prescription of three years. However, Defendant G’s claim is that “the fee claim for a period of less than one year as stipulated in Article 163 subparag. 1 of the Civil Act” means a claim for a bond that is to be paid within a fixed period of not more than one year. The claim by the Plaintiff (Appointed Party) is not a rent or land rent that is premised on the contractual relationship with the instant land, but a return of unjust enrichment equivalent to the rent. Accordingly, it does not constitute “the fee for the short-term extinctive prescription of three years as stipulated in Article 163 of the Civil Act” and the above claim by the Defendant cannot be accepted.

4) Scope of return of unjust enrichment

The scope of unjust enrichment to be returned by the Defendant (Appointed Party) and the Defendants, and the Defendant (Appointed Party) is the total amount of rent for the period of possession and use of each site owned by the Defendant (Appointed Party) and the aforementioned Defendant (Appointed Party) among the co-ownership shares of the Plaintiff (Appointed Party) and AB (Appointed Party) (i.e., the total area of the apartment of this case and each part of exclusive ownership owned by the Defendant (Appointed Party).

On the other hand, comprehensively taking account of whether there is dispute between the parties, Gap 3, 4, and 7 evidence, and the purport of the whole pleadings, ① the defendant (appointed party) possess each of the above units as stated in the separate sheet Nos. 3,6, and 7, and ② The annual rent for the shares of the plaintiff (appointed party) out of the land of this case shall be 6,031,000 won from July 2, 2008 to July 1, 2009, 00. 7. 0, 000 won from July 2, 2010 to July 1, 2010, 000 won from July 2, 2007 to July 1, 2010, 000 won from July 5, 200, 000 to July 20. 1, 207; and 3.07,000 won from July 2, 2010 to July 1, 2010.

5) Sub-committee

Therefore, the separate sheet 6's "Defendant 6" is as follows: (a) the defendant (Appointed Party); (b) the defendant (Appointed Party); (c) the plaintiff (Appointed Party); (d) the additional sheet 6's annual interest rate of 10% from September 2, 2016 to September 2; and (e) the additional sheet 6's annual interest rate of 15% from the 5's annual interest rate of 15% from the following day to the 5's annual interest rate of 15's annual interest rate of 6's annual interest rate of 6's annual interest rate of 10'5''; (b) the defendant (Appointed Party); and (c) the defendant 2's annual interest rate of 6's annual interest rate of 6's annual interest rate of 6's annual interest rate of 1,685's total interest rate of 6's annual interest rate of 6's annual interest rate of 5's annual interest rate of 6's annual interest rate of 10', and 2'6'se monthly interest.

3. Conclusion

Therefore, each claim against the Defendant (Appointed Party) by the Plaintiff (Appointed Party) and the Defendants, and the Defendant (Appointed Party) is justified within the scope of each recognition above, and each remaining claim is dismissed as it is without merit. It is so decided as per Disposition.