Plaintiff 1 and three others (Attorney Kim In-sik, Counsel for the plaintiff-appellant)

Sungnam-si (Law Firm Apex, Attorneys Han Young-young, Counsel for the defendant-appellant)

See attached Table 1, 200,000,000,000

June 15, 2016

Suwon District Court Decision 2013Gahap1558 Decided July 11, 2014

1. We dismiss the plaintiffs' claim for confirmation of ownership added in the trial.

2. Of the plaintiffs' claim for the land rent against the defendants added in the trial, the part of the main claim and the part of the conjunctive claim against the defendants, which were expanded from the trial, are all dismissed.

3. The plaintiffs' appeals against the defendants are all dismissed.

4. Of the appeal costs, the part arising between the Plaintiffs and the Defendants is borne by the Plaintiffs, and the part arising from the intervention is borne by the Plaintiff’s Intervenor.

1. Purport of claim

A. From among the 1955 square meters of shares in ○○○-gu, Sungnam-si ( Address 1 omitted), each relevant share in the share column for the Plaintiff’s shares in attached Table 1 shall be confirmed to be owned by each Plaintiff.

B. (1) The primary purport of the claim

㈎ 피고들은 각자 별지2-가 목록 기재 각 원고들에게 같은 목록 ‘합계’란 기재 각 돈 및 위 각 돈에 대하여 2015. 4. 19.부터 이 사건 청구취지 및 청구원인 변경신청서 부본 송달일까지 연 5%의, 그 다음날부터 다 갚는 날까지 연 20%의 비율에 의한 돈을,

㈏ 2015. 4. 19.부터 피고들이 성남시 ○○구 (주소 1 생략) 대 1955.7㎡ 중 1955.7분의 677.4지분(원고들 지분)에 대한 점유, 사용을 종료할 때까지 또는 원고들이 원고들 지분을 상실할 때까지 매월 18. 별지2-나 목록 ‘합계’란 기재 각 돈을 지급하라.

【Preliminary Claim

㈎ 피고 3 유한회사는 별지2-가 목록 기재 각 원고들에게 같은 목록 ‘합계’란 기재 각 돈 및 위 각 돈에 대하여 2015. 4. 19.부터 이 사건 청구취지 및 청구원인 변경신청서 부본 송달일까지 연 5%의, 그 다음날부터 다 갚는 날까지 연 20%의 비율에 의한 돈을, 2015. 4. 19.부터 위 피고가 성남시 ○○구 (주소 1 생략) 대1955.7㎡ 중 1955.7분의 677.4지분(원고들 지분)에 대한 점유, 사용을 종료할 때까지 또는 위 원고들이 원고들 지분을 상실할 때까지 매월 18. 별지2-나 목록 ‘합계’란 기재 각 돈을 지급하고,

㈏ 피고 1, 피고 4, 피고 2는 피고 3 유한회사와 각자 각 원고들에게 별지2-가 목록 ‘합계’란 기재 돈 중 같은 목록 ‘제1층’의 각 원고란 기재 각 돈 및 위 각 돈에 대하여 2015. 4. 19.부터 이 사건 청구취지 및 청구원인 변경신청서 부본 송달일까지 연 5%의, 그 다음날부터 다 갚는 날까지 연 20%의 비율에 의한 돈을, 2015. 4. 19.부터 위 피고들이 성남시 ○○구 (주소 1 생략) 대 1955.7㎡ 중 1955.7분의 677.4지분(원고들 지분)에 대한 점유, 사용을 종료할 때까지 또는 위 원고들이 원고들 지분을 상실할 때까지 매월 18. 피고 3 유한회사와 각자 각 원고들에게 별지2-나 목록‘합계’란 기재 돈 중 같은 목록 ‘제1층’의 각 원고란 기재 각 돈을 지급하고,

㈐ 피고 5, 피고 6, 피고 7, 피고 8, 피고 9, 피고 10, 피고 11, 피고 12, 피고 13 주식회사, 피고 14, 피고 15, 피고 16, 피고 17, 피고 18, 피고 19는 피고 3 유한회사와 각자 각 원고들에게 별지2-가 목록 ‘합계’란 기재 돈 중 같은 목록 ‘2층’의 각 원고란 기재 각 돈 및 위 각 돈에 대하여 2015. 4. 19.부터 이 사건 청구취지 및 청구원인 변경신청서 부본 송달일까지 연 5%의, 그 다음날부터 다 갚는 날까지 연 20%의 비율에 의한 돈을, 2015. 4. 19.부터 위 피고들이 성남시 ○○구 (주소 1 생략) 대1955.7㎡ 중 1955.7분의 677.4지분(원고들 지분)에 대한 점유, 사용을 종료할 때까지 또는 위 원고들이 원고들 지분을 상실할 때까지 매월 18. 피고 3 유한회사와 각자 각 원고들에게 별지2-나 목록 ‘합계’란 기재 돈 중 같은 목록 ‘2층’의 각 원고란 기재 각 돈을 지급하고,

㈑ 피고 20, 피고 21, 피고 22, 피고 23, 피고 24, 피고 25, 피고 26, 피고 27, 피고 28, 피고 29, 피고 30은 피고 3 유한회사와 각자 각 원고들에게 별지2-가 목록 ‘합계’란 기재 돈 중 같은 목록 ‘지하1층’의 각 원고란 기재 각 돈 및 위 각 돈에 대하여 2015. 4. 19.부터 이 사건 청구취지 및 청구원인 변경신청서 부본 송달일까지 연 5%의, 그 다음날부터 다 갚는 날까지 연 20%의 비율에 의한 돈을, 2015. 4. 19.부터 위 피고들이 성남시 ○○구 (주소 1 생략) 대 1955.7㎡ 중 1955.7분의 677.4지분(원고들지분)에 대한 점유, 사용을 종료할 때까지 또는 위 원고들이 원고들 지분을 상실할 때까지 매월 18. 피고 3 유한회사와 각자 각 원고들에게 별지2-나 목록 ‘합계’란 기재 돈 중 같은 목록 ‘지하1층’의 각 원고란 기재 각 돈을 지급하라.

[The plaintiff added the claim stated in the above paragraph (a) and (b) at the trial of the party, and expanded the claim by modifying the claim in the first instance trial to the preliminary claim, such as B B’s Sheet.]

2. Purport of appeal

The judgment of the first instance shall be revoked.

A. From January 19, 2014 to the delivery date of a copy of the application form for the purport of the claim and modification of the cause of the claim, Defendant 3 limited liability company shall pay 5% interest per annum on each of the above amounts entered in the claim amount of Attached 3 No. 1-A to each of the plaintiffs listed in the same list, and 20% interest per annum from the following day to the day of complete payment, from January 19, 2014 to the day of complete payment, and from January 19, 2014 to the day of complete payment, Defendant 3 shall pay 67.4/195.7/195 of the above Defendant’s share of ○○○-gu, Sungnam-si ( Address 1 omitted) and 1955.7 square meters (the Plaintiff’s share) from 1955.7 square meters, or until the above Plaintiffs lose their share in the Plaintiffs, each of the money stated in the column of Attached 3 No. 1-B

B. Defendants 1, 4, and 2 shall pay to each of the plaintiffs as well as limited liability companies and each of the plaintiffs as to each of the above amounts listed in the column of "the first floor" in the separate sheet No. 1-A of the claim amount listed in the separate sheet No. 3 attached hereto, 5% per annum from January 19, 2014 to the service date of a duplicate of the application for change of claim and cause of claim in this case, 20% per annum from the next day to the day of complete payment, 10% per annum from January 19, 2014 to the day of complete payment, and 67.4% from January 19, 2014 to ○○-gu ( Address 1 omitted) of 1955.7m2 to 1955.7m2, 19555.7m2 until the above plaintiffs' share is occupied, terminated, or the above plaintiffs' share is lost, the separate list No. 31-1 or 1-1 column of "the separate column".

C. Defendants 5, 6, 7, 8, 9, 10, 11, 13, 15, 16, 17, 18, and 19 shall pay to each of the plaintiffs as stated in the column of “the second floor” of the attached Table No. 1-A of the claim amount in the attached Table No. 3 to Defendant 3 limited companies and their respective plaintiffs, 15, 16, 17, 18, and 19, 5% per annum from January 19, 2014 to the date of delivery of a duplicate of the claim and the cause of the claim in this case; 20% per annum from the next day to the date of full payment; from January 19, 2014 to the date of full payment; from January 19, 2014 to the date of termination of each of the plaintiffs’ respective shares in the attached Table No. 3-167, Jul. 7, 2015.

D. Defendant 22, 23, 24, 25, 26, 28, and 29 shall pay to each of the Plaintiffs, including Defendant 3 limited liability companies and each of them, 5% interest per annum from January 19, 2014 to the delivery date of a copy of the application for change of the purport of the claim and the cause of the claim in this case, and 20% interest per annum from January 19, 2014 to the date of full payment, from January 19, 2014 to the date of delivery of a copy of the application for change of the purport of the claim in this case, and from January 19, 2014 to the date of full payment, the above Defendants shall enter 67.4/1957 of shares in the ○○-gu ( Address 1 omitted) of Sungnam-si, 1955 to the date of termination of the claim or use of shares in the list of Plaintiffs 1 and each of the above Plaintiffs 31-1 and each of the plaintiffs 31-1.

E. Defendants 12, 14, 20, 21, 27, and 30 shall pay 100 won to each of the Plaintiffs.

Ⅰ. Basic facts

1. Promotion of projects for constructing neighborhood living facilities and collective housing of Nonparty 2;

A. On May 29, 1978, Nonparty 2 Co., Ltd. (hereinafter “Nonindicted Co. 2”) completed the registration of ownership transfer with respect to ○○○-gu ( Address 1 omitted) and 1974m2 (hereinafter “pre-divisioned land”).

B. On the land before subdivision, Nonparty 2 obtained a building permit for construction of a new building, which is an apartment house, from the Sungnam market on February 23, 1993 in order to construct a new building, from the first to the third above ground level, to the fourth above ground level, from the fourth to the sixth above ground level, on the land before subdivision. At that time, Nonparty 2 entered into a construction contract with Nonparty 3 Co., Ltd. and started construction work on February 21, 1994.

C. On May 10, 1994, Nonparty 2 continued construction with permission for change from the Sungnam market to the second underground floor and the sixth floor above the ground.

2. Sale by Nonparty 2

The non-party 2 started to sell the building site shares to the third party from June 1994, including the ownership of the building site shares by the unit of the building that was newly built to the third party.

3. Modification of design and registration of preservation of ownership by Nonparty 2

A. Nonparty 2 changed the design to construct multi-family housing units from the ground level to the 6th above ground level of a building scheduled to be newly built by reducing the size of the building from the 2nd to the 3rd above ground level, and obtained permission for the above change of the design from the Sungnam market on September 18, 1995.

B. According to the revised design around January 1, 1996, Nonparty 2 completed the building of neighborhood living facilities with the second and third floors above ground (hereinafter “instant building”). On January 9, 1996, the general building register was prepared as to the instant building upon obtaining approval for use as a general building.

C. On January 1, 1996, Nonparty 3 filed an application against Nonparty 2 for provisional injunction against disposal of real estate in relation to the building of this case with Suwon District Court Sung-nam Branch 96Kahap43, and received a provisional injunction order from the above court on January 17, 1996. On the same day, due to the entrustment of registration based on the above provisional injunction, registration of preservation of ownership was completed in the future of Nonparty 2, and the above provisional injunction registration was completed in the name of Nonparty 3.

4. Division of the land prior to subdivision.

On May 17, 1996, the land before subdivision was divided into 00,000,000 m2,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

5. Registration of the purport that it is a site ownership and site ownership;

A. The building ledger of the instant building was converted into the collective building ledger on July 6, 1996, and the instant building was registered as being composed of 193 rooms in the collective building ledger.

B. On July 22, 1996, the building of this case was divided into the above 193 rooms and registered as an aggregate building (hereinafter the above 193 sections were referred to as "each of the separate sections of this case"). The right to a site registration was completed as described below in the register of each of the separate sections of this case, and the total share ratio of the right to a site registered in each of the separate sections of this case was as listed in the separate sections of this case in the separate sections of this case as shown in the separate sections of this case 4.

Land which is the object of site ownership: The site of this case

The ratio of the right to a site: The number of molecular in attached Form 4's list of the right to a site shall be / 1955.7

C. On July 22, 1996, upon the completion of the above right to a site registration, the purport that the ownership of the site of this case was the right to a site for the building of this case was made on the registry of the site of this case. On August 12, 1996, only the shares of this case on the ground of “Error discovery” on August 12, 1996 (hereinafter “the remaining shares of this case”) were the right to a site for the building of this case, and the registration for correction of a right to a site indication was made ex officio.

6. Acquisition of each of the instant sections by the Defendants

A. The registration of preservation of ownership in the name of Nonparty 2 Company and the registration of provisional disposition in the name of Nonparty 3 was transferred to the register of each of the partitioned buildings of this case, as the building of this case was registered by division as above.

B. From February 3, 1997, the non-party 2 completed the registration of ownership transfer for each of the instant sectional buildings from the buyer to the buyer, and the registration of provisional disposition in the name of the non-party 3 was cancelled on February 15, 1997.

C. The Defendants owned each of the instant sections as indicated in the separate ownership list as shown in the separate ownership list in a way that the buyers or the buyers acquire each of the instant sections from the buyer and have completed the registration of ownership transfer.

7. Acquisition of the plaintiffs' shares in the dispute of this case

A. Meanwhile, as stated in paragraph (c) above, the instant site had been registered for the correction of the indication of a site as stated in the above 5-C, and thus, shares in the instant site (i.e., shares in the 1-238/1955.7 shares indicated for the purpose of site ownership (hereinafter “instant dispute shares”) still remains in the register as it still owned by Nonparty 2.

B. Sungnam-si seized the instant dispute shares on January 5, 2001, and the Plaintiffs acquired the instant dispute shares in the public sale procedure based on the above attachment on March 19, 2013, and completed the registration of ownership transfer on April 4, 2013 as follows.

Plaintiff 1 (Non-party to the Judgment of the Supreme Court) indicated in the main text of Plaintiff 2, Plaintiff 3, 467.462/23468.4 equity in 2032.386/23468.4 equity in 2709.848/23468.4 equity in 2709.848/23468.4 equity in 677.642/1955.7 equity in total.

[Ground of recognition] without any dispute, Gap evidence 1, Gap evidence 2, Gap evidence 7, Gap evidence 8, Gap evidence 10, Gap evidence 40, Gap evidence 41, Gap evidence 43, Eul evidence 1 through 4, Eul evidence 1 through 4, the fact inquiry results of the fact inquiry conducted by the court of the first instance on June 2, 2016 for the Sungnam market, the purport of the whole pleadings.

Ⅱ Judgment on the claim for confirmation of ownership

1. The assertion;

In Section 1, the plaintiffs are the owners of the share in the dispute in this case who have effectively acquired the share in the dispute in this case on the grounds as described in Section 1-A, Section 1-2, Section 3-2, Section 3-2, Section 3-A, and Section 3-2, Section 3-2. The defendants are asserting that the right to use the share in this case was established with respect to the share in this case. Accordingly, the plaintiffs are seeking confirmation as to the share in this case as to the share in this case by the plaintiffs in the same proportion as Section 7-2, Section 3.

2. Determination

A lawsuit for confirmation is recognized in cases where, when the legal status of the Plaintiff is unstable and dangerous, it is deemed that it is the most effective and appropriate means to determine by a judgment of confirmation to eliminate such apprehension and danger. Therefore, even though a lawsuit for performance can be brought, filing a lawsuit for confirmation is not a final solution of a dispute, and there is no benefit of confirmation (see Supreme Court Decision 2001Da30469, Dec. 24, 2001).

In this case, inasmuch as the plaintiffs directly seek unjust enrichment or damages against the defendants under the premise that they are the owners of the share in the instant dispute, as described in paragraph (3) below, the plaintiffs cannot be deemed to have a benefit in filing a separate lawsuit for confirmation against the defendants.

Ⅲ Judgment on the claim for land rent

1. Judgment as to the main claim

A. Determination as to the ground for the primary claim

(1) argument

Since the building of this case was constructed as an aggregate building and the partition of sections for exclusive use of each of the instant sections of this case was entirely removed from January 18, 2001, the act of division as an aggregate building of this case was revoked and sectional ownership became extinct, the remaining shares in the building of this case and the dispute share in this case were changed to a simple co-ownership.

Therefore, the share in the dispute of this case acquired by the plaintiffs is a mere co-ownership and the plaintiffs legally acquired the share in the dispute of this case. Thus, the defendants, as co-owners of the building of this case, who possess the whole site of this case, are obligated to pay the same money as stated in Paragraph B (1) as unjust enrichment or damages to the plaintiffs, who are owners of the share in this case.

Shed Judgment

In full view of Gap evidence No. 2, Gap evidence No. 45, Gap evidence No. 46, Gap evidence No. 52 and the purport of the whole arguments and arguments, the building of this case was constructed as an aggregate building and operated by several buyers by moving into each of the partitioned buildings of this case. The owners of some partitioned buildings have used part of the partitioned buildings as one business place. At present, the first and third floors of the building of this case are all removed, and the first and upper floors of the building of this case are used as sales facilities, such as household goods, and the third floors are used as a bath, and the second floor of the ground are separated from the details of the original partitioned building and are used for singing, bath, etc.

However, as seen below 2-B, since the building of this case, which is an aggregate building, was completed on January 9, 196 on the site of this case, and the right to use the site of this case was established as to the whole site of this case, and the part on the registration of ownership in the name of Nonparty 2 as to the share in the dispute of this case becomes null and void, if the building of this case was subsequently abolished as an aggregate building, the owner of the section for exclusive use at the time of the abolition of the division is entitled to share the whole site of this case, and it cannot be deemed that the registration of ownership in the name of Nonparty 2 as to the share in the dispute of this case, which is already null and void due to the abolition of division as an aggregate building.

Therefore, on different premise, the above assertion by the prior plaintiffs is without merit to determine whether the building of this case was abolished ex post factoly.

B. Determination as to the causes of the second claim

(1) argument

Since the instant building is not an aggregate building because there is no structural independence and division corresponding to the act of division from the new construction to the present, the Act on Ownership and Management of Condominium Buildings (hereinafter “Act on Ownership and Management of Condominium Buildings”) does not apply to the ownership of the instant site, which is the site of the instant building.

Therefore, it is lawful for the plaintiffs to acquire the shares in the dispute of this case remaining in the name of the non-party 2 company. Thus, the defendants who possess the whole site of this case as co-owners of the building of this case are obligated to pay the same money as stated in paragraph (1) of this case to the plaintiffs, who are owners of the shares in this case, as unjust enrichment or damages.

Shed Judgment

In order to establish sectional ownership of one building, there exists one building in an objective and physical aspect, and there is a separate act to divide the building parts into the objects of sectional ownership, as well as the physically partitioned building parts of one building into the objects of sectional ownership, without changing the physical form and quality of the building. Here, the act of partitioning is a kind of legal act that intends to divide a specific part of a building into the objects of sectional ownership without changing the physical form and quality of the building, and is not a special restriction on the time and method, but is recognized if the intention of dividing the disposal authority objectively indicates that the new building will be a sectionally constructed building through the application for building permission or the contract for sale in lots even before the physical completion of the partitioned building, if it is objectively and physically completed, the act of partitioning can be recognized, and even if the building is registered in the aggregate building register or not registered in the register (see Supreme Court en banc Decision 2017Da71578, Jan. 17, 2013).

The following circumstances are as follows: (i) No. 2, No. 3, No. 4, No. 17 through No. 19, No. 22, and No. 23, and the court of first instance as to the building head of the ○○○○○○, Sung-si, 1, and each document sent by No. 96, Nov. 7, 2013, which are acknowledged as being comprehensively reflected in the purport of the whole pleadings; (ii) Non-Party 2 had the authority to construct a new building on No. 4 through No. 96, which had been registered as an apartment building at the time of 96, and it is objectively indicated that it had no authority to construct a new building on No. 96, which had been newly constructed by the third party from Jun. 1, 1994 to Jun. 9, 196.

Therefore, the plaintiffs' assertion on different premise is without merit.

2. Determination on the conjunctive claim

A. The assertion

(1) The plaintiffs

㈎ 원고들이 이 사건 계쟁지분을 취득한 것은 다음과 같은 이유로 유효하다.

① The share in the instant dispute is not a share provided as a right to use the site of each of the instant sections for the following reasons, and the ownership transfer registration for the share in the instant dispute in the name of Nonparty 2 is valid.

The instant dispute, which was to be provided by Nonparty 2 as a right to use the site of each partitioned building, which was planned to be constructed on the ground of the instant site, was left in its name in preparation for the following cases: (a) the size of the building scheduled to be constructed on the ground of the instant site was changed from the ground level 2, 6 to the ground level 3 above the ground level; (b) only the instant remaining shares were provided by the right to use the site of the newly constructed building; and (c) the share in the instant dispute, which was intended to be provided

(B) Before the completion of the instant building, Nonparty 2 concluded a sales contract with the purport of transferring only the remaining shares of this case to the buyers, and the entire site of this case, the instant dispute shares were separated and disposed of before the establishment of divided ownership, by setting up a collateral security to △△ Bank (hereinafter “△△ Bank”) and having it maintained the identity of the said collateral security, thereby maintaining the dispute shares of this case.

② Even if the right to use the site of each of the instant sections is established with respect to the dispute shares, the dispute shares in the instant case may be disposed of separately from the section for exclusive use of each of the instant sections for the following reasons.

The public auction procedure conducted with respect to the instant dispute shares is substantially the same as the execution of the right to collateral security established prior to the establishment of the right to use the site for the instant dispute.

(C) There is an original rule or a notarial deed prepared by Nonparty 2, which permits the disposal of the share in the instant case separately from the section for exclusive use of each of the instant sections.

The non-party 2, among each of the instant sections, occupied the entire site of this case as the intention of ownership by owning 33 underground, and met the requirements for the acquisition by prescription of the registry, and thus, the share in the instant case was acquired by prescription.

③ Even if the share in the instant case constitutes a case in which it cannot be disposed of separately from the section for exclusive use, it is unreasonable to challenge the Plaintiffs’ acquisition of ownership on the grounds that the Defendants violated the principle of prohibition of separate disposition under Article 20 of the Aggregate Buildings Act against the Plaintiffs.

The plaintiffs acquired the shares in the dispute of this case through the public sale procedure, trust that there is no right to use the site as to the shares in the dispute of this case. The plaintiffs are bona fide third parties under Article 20 (3) of the Aggregate Buildings Act.

(B) At the time of the investigation conducted in the public sale process of the instant case, Defendant 3-liability company’s regular director Nonparty 4, who owned most of the instant sections, recognized that the share in the instant case was owned by Nonparty 2, and thus, the Defendants’ assertion that the acquisition of the share in the instant case was null and void is in violation of the principle of good faith and the principle of prohibition and prohibition, and thus, did not have any right assertion even though all the Defendants knew of the fact that the share in the instant case remains in the name of Nonparty 2. Therefore, the Defendants’ assertion that the share in the instant case in the name of Nonparty 2 is null and void is not permissible as it has become an assertion that became null and void

㈏ 따라서 피고들은 아무런 권원 없이 이 사건 계쟁지분을 배타적으로 점유, 사용하면서 이득을 취하고 있으므로, 이 사건 계쟁지분의 권리자들인 원고들에게 청구취지 나의 ⑵항 기재와 같은 돈을 부당이득 또는 손해배상금으로 반환할 의무가 있다.

Shebly Defendants

㈎ 원고들이 이 사건 계쟁지분을 취득한 것은 다음과 같은 이유로 효력이 없다.

① Since the right to use the site for the instant building was established as to the entire site of the instant building where the instant building is located, the instant dispute shares cannot be separated from the section for exclusive use in each of the instant sections and disposed of.

② Since there was no stipulation that the shares in the dispute in this case may be disposed of separately from the section for exclusive use, the shares in this case do not constitute a case where the shares in this case may be disposed of separately from the section for exclusive use. However, although the registration that is a site ownership has not been made with respect to the shares in this case, it cannot be deemed that the shares in this case may be disposed of separately from the section for exclusive use for the following reasons.

It is not presumed that there is a notarial deed that a separate disposition is possible because the above registration is not presumed to be sufficient.

(B) Even if the existence of a family notarial deed is presumed, this case is not a notarial deed but a separate disposition can be made only by the rules, and there is no provision that a separate disposition may be made.

Even if the existence of the family rules is presumed to be also presumed to exist, the presumption was destroyed due to the inconsistency between the register of each of the sections of this case and the site registration.

③ Since the Plaintiffs were well aware of the existence of each of the instant sections in the entire site of this case, they do not constitute a bona fide third party under Article 20(3) of the Aggregate Buildings Act. The Defendants were aware that the entire site of this case was provided as the right to use site of each of the instant sections of this case. Therefore, the Defendants’ assertion that the acquisition of ownership by the Plaintiffs is null and void does not constitute a case where the same is contrary to the good faith principle or the forfeited doctrine

㈏ 따라서 피고들은 원고들에 대하여 부당이득반환의무 또는 손해배상의무를 부담하지 않는다.

B. Determination

(1) Whether the right to use the site was established as to the share in the dispute in this case

㈎ 관련 법리

In order to establish a right to use a site of an aggregate building as a right that a sectional owner has on the site of a building to own a section for exclusive use, other special requirements are not required in addition to the existence of an aggregate building and the right that a sectional owner is entitled to use the site for the ownership of a section for exclusive use (see Supreme Court Decision 2009Da26145, Jun. 23, 2009, etc.).

In this regard, the right to use the site of an aggregate building shall be established with respect to the whole site used as the site of an aggregate building, unless there are special circumstances. However, if the owner of land newly constructs an aggregate building with intent to establish the right to use the site only with respect to the portion of the site of an aggregate building among the sites of an aggregate building when constructing an aggregate building, the right to use the site shall be established only for the portion of

㈏ 소외 2 회사의 이 사건 건물을 위한 대지사용권 설정 의사

(1) Ratification through design changes, sales contracts, etc.

We examine whether it can be confirmed that the non-party 2 company had an intention to establish the right to use the site only with respect to the remaining shares of this case through design change, conclusion of the contract for sale in lots, etc.

In full view of the facts acknowledged in the above I, Gap evidence Nos. 43 and Eul evidence No. 2, the non-party 2 company started to sell approximately 238 to 253 commercial buildings and apartment houses from around June 1994, which were the 1st underground floor, and the 6th above ground level, but did not sell above 4 to 6th above ground, and waived construction up to 4 to 6th above ground level. On September 18, 1995, the non-party 2 company obtained design approval and sold only 193 commercial buildings with the total size of 3rd above ground level and 96th below ground size of the building site, and the non-party 2 company entered the size of the 196th above ground size of the building site in the register of the non-party 2 company and the non-party 2 company's share in the size of the 196th below ground size and 96th below ground size of the building site.

그러나 위 Ⅰ항에서 인정한 사실 및 갑 제40호증, 을 제4호증의 각 기재, 제1심 법원의 감정인 □□□에 대한 감정촉탁결과, 당심 법원의 주식회사 ◇◇은행에 대한 금융거래정보제출명령결과에 변론 전체의 취지를 종합하면, ㉲ 소외 2 회사가 1994. 6.경부터 수분양자들과 사이에 체결한 분양계약서의 부동산의 표시란에 이 사건 대지가 기재되어 있고, 1995. 9. 18. 건물의 규모를 축소하여 설계변경허가를 받은 이후에도 동일한 양식의 분양계약서를 이용하여 분양계약을 체결하여 왔는바, 분양계약서에 이 사건 건물의 대지사용권으로 제공되는 대지가 이 사건 대지 전체가 아니라 이 사건 나머지 지분 뿐이라는 점이 명시되어 있지 아니한 점, ㉳ 소외 2 회사와 수분양자들 사이에 작성된 분양계약서에 수분양자들이 분양받는 대지지분의 표시가 지하 1층 내지 지상 6층 규모의 건물의 전유부분의 총 면적 중 당해 전유부분의 면적이 차지하는 비율로 기재되어 있는 경우가 많았던 것이 사실이기는 하나, ⓐ 분양계약서에 건물분양면적과 대지(공유지분)이 분리되어 표시되어 있고, ‘건물분양면적’란에는 전용면적, 공용면적이, ‘대지(공유지분)’란에는 대지지분의 면적이 각 표시되어 있으며, 분양계약서 제7조 제4항에 “본 계약서상의 공유대지는 공급면적 비율에 의거 배분하여 공유지분으로 이전하되”라고 기재되어 있고, ⓑ 실제로 일부 수분양자들이 분양받은 집합건물의 등기부에는 대지권비율이 지하 2층 내지 지상 3층 규모의 건물의 전유부분의 총 면적 중 당해 전유부분의 면적이 차지하는 비율 또는 그보다 큰 수의 비율로 기재되기도 하였고 그와 같이 등기된 집합건물들 중에는 설계변경 전에 체결된 분양계약의 분양목적물도 포함되어 있는바, 이에 비추어 볼 때 위 분양계약서 제7조 제4항이 단순한 예문에 불과하여 분양계약서에 기재된 대지지분의 표시가 당해 수분양자가 분양받은 전유부분에 확정적으로 부여되는 대지지분이라고 보기는 어렵고, 오히려 소외 2 회사와 수분양자들은 분양계약서 제7조 제4항에 기재된 바와 같이 수분양자들이 이 사건 대지 위에 건축되는 건물의 각 전유부분의 총 면적 중 분양목적물의 전유부분이 차지하는 비율만큼의 대지지분을 분양받는 것으로 약정하였다고 해석하는 것이 타당한 것으로 보이는 점, ㉴ 소외 2 회사는 지상 4층 내지 지상 6층의 공동주택의 분양이 이루어지지 않자 1995. 9. 18. 설계를 변경하고서 공사를 계속하였으나, 이 사건 건물을 완공할 때까지 상가 전체에 대한 분양을 완료하지 못하였고, 이로 인하여 소외 5 회사가 소외 3 회사에게 공사대금을 제대로 지급하지 못하자 소외 3 회사가 이 사건 건물에 가처분등기를 경료하여, 이미 이 사건 건물에 입주하여 영업을 개시한 수분양자들이 집단적으로 항의를 하고 있는 상황이었는바, 이와 같은 일련의 과정 중 분양계약을 체결한 수분양자들이 이 사건 대지 전체에 대지사용권이 설정되는 것이 아니라 이 사건 나머지 지분에 관하여만 대지사용권이 설정되는 것이라는 사정 즉, 분양계약서에 기재된 대지지분만이 자신의 전유부분의 대지지분에 해당하는 것이라는 것을 인식하였음에도 불구하고 그와 같은 내용으로 분양계약을 체결한다는 것은 통상의 상가분양거래 관념에 반하고, 따라서 분양을 더 많이 하여야 할 입장에 있던 소외 2 회사가 수분양자들이 선호하지 않는 위와 같은 방식으로 대지지분 비율을 계산하여 분양계약을 체결하려고 의욕하였다고 보기는 어려운 점, ㉵ 이 사건 대지의 전체 위에 이 사건 건물이 존재하고 있어 이 사건 건물의 부지를 제외한 나머지 대지부분에 다른 건물을 건축할 수 있는 상태가 아니고 소외 2 회사가 향후 이 사건 건물을 수직으로 증축할 예정이었다는 점을 인정할 만한 자료는 없는 점과 같은 사정이 인정된다.

위 ㉲ 내지 ㉵항 기재의 각 사정들을 종합하여 볼 때, 앞서 인정한 ㉮ 내지 ㉱항 기재 사실들만으로는 소외 2 회사가 이 사건 나머지 지분에 관하여만 대지사용권을 설정하고 이 사건 계쟁지분에 관하여는 대지사용권을 설정하지 않으려는 의사가 있었다고 보기는 어렵고, 달리 이를 인정할 만한 증거가 없다.

(2) Ratification by means of registration of the establishment of neighboring mortgage.

We examine whether it can be confirmed that Nonparty 2 had an intention to establish the right to use the site only with respect to the remaining shares of this case through the registration of the establishment of the neighboring mortgage established by Nonparty 2 prior to the completion of the building of this case.

According to Gap evidence No. 8, Gap evidence No. 44, and evidence No. 51, with respect to the land prior to the division of the site in this case, four (4), with respect to the land prior to the division, the sum of the maximum debt amount under the name of △△ Bank from September 14, 1994 to November 29, 195, was registered for four (4,060,000,000). On August 29, 196, 148 of each of the above four (4) units of the building in this case was added to three (3) additional collateral under the name of △△△ Bank for three (148) collateral, and the establishment of the establishment of the establishment of the establishment of the mortgages in this case on February 17, 1997, the establishment of the mortgages in this case was completely cancelled due to the waiver of the "part", and the establishment of the mortgages in this case and the above sub-lease No. 290,290,290 of the lease security deposit in this case.

However, even if the secured debt of the establishment registration of a neighboring mortgage established on the land prior to the division is identical to the secured debt of the establishment registration of a neighboring mortgage established on the land prior to the division, insofar as the establishment registration of a neighboring mortgage established on the land prior to the division was completely cancelled on February 17, 1997 and the new mortgage registration was completed on the same day, each of the above secured mortgage is a registration of establishment of a neighboring mortgage of the same kind, and it cannot be deemed that the establishment registration of a neighboring mortgage established on the land prior to the division remains in existence on the grounds of partial renunciation.

Therefore, the above recognition alone cannot be deemed as having been separately disposed of prior to the establishment of the right to use the site by having the right to use the site prior to the establishment of the right to use the site for the dispute of this case by the non-party 2 company. There is no evidence to acknowledge otherwise.

㈐ 소결론

The non-party 2 is the owner of the building site of this case and newly constructed the building of this case, which is an aggregate building on January 9, 1996, using the site of this case as the site of this case. As seen earlier, it is difficult to deem that the non-party 2 had an intention to establish the right to use the site only with respect to the remaining shares of this case among the site of this case, and there is no other circumstance to recognize such intention as to the non-party 2, the right to use the site of this case for the section for exclusive use of the building of this case was established as to the whole site of this case, and accordingly, the right to use the site following the disposition of the section for exclusive use of each building of this case was determined as the share in accordance with the ratio of the area of the section for exclusive use of each of the building of this case to the site

D. Whether the right to use the site in the dispute of this case can be separately disposed of

㈎ 대지사용권 성립 이전에 설정되어 있던 근저당권이 실행된 경우인지 여부

Where an auction is conducted for the portion of land and public land equivalent to the right to use the site of a part of exclusive ownership by exercising the right to use site with a separate registration as to the site prior to the establishment of the right to use site, and the portion of the public land is sold and disposed of separately from the section of exclusive ownership, the right to use site for that section of exclusive ownership expires (see Supreme Court Decision 2005Da15048, Mar. 13, 2008

However, the registration of the establishment of a neighboring mortgage in the name of △△ Bank prior to the establishment of a right to use the site was revoked on February 17, 1997. The registration of the establishment of a neighboring mortgage in the dispute of this case remaining in the dispute of this case at the time of the public sale procedure with respect to the shares in this case was conducted, as seen earlier, as the registration of the establishment of a neighboring mortgage in the name of △ Bank established on February 17, 1997, which cannot be deemed as the same as the registration of the establishment of a neighboring mortgage established on the date of establishment of a right to use the site, and therefore, the public sale procedure conducted with respect to the shares in this case cannot be deemed as the same case as the registration of the establishment of a neighboring mortgage established prior to the establishment of a right to use the site.

Therefore, this part of the plaintiffs' assertion is without merit.

㈏ 분리처분을 허용하는 내용의 원시규약 또는 공정증서 등의 존부 및 그 효력

1. Presumption of the existence of notarial deeds prepared by Nonparty 2

In full view of the provisions of the relevant Acts, etc. and the registered rules, an application form for registration of ownership preservation concerning a sectioned building with a right to use site shall be made with the indication of a site unless there is a stipulation allowing separate disposal or a notarial deed attached thereto. In this case, the proportion of the right to site ownership in the section of exclusive ownership shall be determined and registered in the proportion of the area of the relevant section of exclusive ownership to the sum of the area of the section of exclusive ownership. Provided, That where the owner of land falling under the site of a building belongs to the same person as the ownership of each section of exclusive ownership in the site by newly constructing one building, the owner of the section of exclusive ownership and the site may dispose of the section of exclusive ownership separately from the proportion of the area of the section of exclusive ownership, or the proportion of the right to use site resulting from the disposal of the section of exclusive ownership is determined differently from the proportion of the area of each section of exclusive ownership by submitting the notarial deed at the time of applying for registration.

In light of the above provisions of relevant laws, etc., if the non-party 2 applied for the partition registration of the building of this case which was registered as a general building on July 22, 1996 in order to register it as an aggregate building, and did not submit any documents attached thereto, the proportion of the site ownership of each partitioned building in the register of the aggregate buildings of this case was registered in the proportion that the area of the relevant section of exclusive ownership accounts for the total area of each section of exclusive ownership.

However, in the register of the aggregate buildings of each of the instant sections, the proportion of the site ownership of each of the respective sections is different from the proportion of the area of the section for exclusive use of each of the instant sections, and the fact that all the shares of the site indicated as the site ownership are not 1 but 1278.238/1955.7 shares, as seen earlier, the fact that the registration of the site ownership of each of the instant sections for exclusive use of this case is made as above. In order for the registration of the site ownership to be made as above, the non-party 2 company filed an application for separate registration on July 22, 1996, and submitted a notarial deed that the ratio of the right to use the site to the disposal of each of the sections for exclusive use of this case is registered as a notarial deed or a right to use the site, which

② Effect of the notarial deed prepared by Nonparty 2

Article 20 of the Aggregate Buildings Act provides that the right to use site of a sectional owner shall be subject to the disposition of his section of exclusive ownership (Article 1) and that the sectional owner shall not dispose of the right to use site separately from his section of exclusive ownership unless otherwise stipulated by the regulations or notarial deeds (Article 20 (2) and (4)). The prohibition of separate disposition shall not be asserted against a third party who has acquired real rights in good faith without registering its purport (Article 3). The purport of the above provision is to prevent the occurrence of sectional ownership without the right to use site by preventing the separation between the section of exclusive ownership and the right to use site from occurring without the right to use site by preventing the occurrence of sectional ownership without the right to use site (Article 204Da742, Mar. 10, 206, etc.). In light of the above purport, if a person who owns the whole section of exclusive ownership or an appurtenant building in accordance with the proviso of Article 20 (2) and (4) of the Aggregate Buildings Act, the right to use site and the right to use site can be excluded from the exclusive ownership.

Where a seller of an aggregate building constructs an aggregate building with one unit of land owned by him/her and completes an aggregate building for each section of exclusive ownership, and the right to use site has been established according to the ratio of the area of each section of exclusive ownership for each section of exclusive ownership, the seller of an aggregate building externally owns all sections of exclusive ownership and right to use site. However, according to the effect of the sales contract with the buyer, the buyer bears the duty to transfer the section of exclusive ownership and right to use site of each section of exclusive ownership according to the effect of the sales contract with the buyer, and the buyer is in the status of holding the right to claim the transfer of each section of exclusive ownership and right to use site based on the sales contract to the buyer. In such a case, setting the contents of the right to use site which are different from the contents of the right to use site already established constitutes an act of changing the contents of the right to request the transfer of the right to use site, and even if the seller of an aggregate building has already concluded the right to use site with the whole one unit of land owned by himself/herself, it is not necessary to establish the right to use site by the seller of exclusive ownership.

In full view of the facts acknowledged in the above-mentioned I, Eul evidence Nos. 11 through 15, and the purport of the whole pleadings, the construction of the building of this case, which is an aggregate building on the site of this case owned by the non-party 2, and the construction of the building of this case, which is an aggregate building from June 2, 1994, after entering into a sales contract with several buyers from around June 9, 1996, was completed the building of this case, which is an aggregate building on the ground of the site of this case. The non-party 2, upon completion of the building of this case, was fully or partially paid from some buyers at the time of completion of the building of this case. Accordingly, some buyers, from around February 1996, started the business after delivery of each section of exclusive ownership from the non-party 2, which was established by the non-party 2. According to the above facts of recognition, although the non-party 2 had exclusive ownership around July 22, 1996, it is necessary to transfer the right to use of this case and its exclusive ownership.

Therefore, even if Nonparty 2 prepared a notarial deed stating the content of arbitrarily setting the ratio of right to use site according to the disposition of the section for exclusive use of each of the instant sections, it does not have the effect of changing the ratio of right to use site according to the disposition of each of the instant sections for exclusive use.

(3) Existence of bylaws

According to the statement No. 2-1 and No. 2 of the sales contract in this case, it can be acknowledged that Article 10 of the sales contract in this case provides that "the non-party 2, who is the market opener, shall manage the market, establish a separate commercial building management rules, and the buyer shall observe them." However, the above recognition alone cannot be confirmed that the non-party 2 set the management rules for commercial buildings as stipulated by the above provision, or that the management rules for commercial buildings include the ratio of section for exclusive use and right to use site, and otherwise, the buyer and the non-party 2 determined the ratio of right to use site of each section of this case to the ratio indicated in the registration of right to site of each section of this case according to the procedures stipulated in the Aggregate Buildings Act, there is no evidence to acknowledge that the regulations have been established, and in light of the procedure for registration of right to site, it cannot be deemed that there is no presumption of the existence of regulations established between the buyer of each section of this case and the buyer of the non-party 2.

④ Sub-committee

Therefore, the ratio of the right to use site to the disposal of the section for exclusive use of the building of this case is not the ratio according to the area of the section for exclusive use that has already been established, and an application for registration of the division of the building of this case on July 22, 1996, along with a notarial deed, is filed with respect to each of the above sections for separate use of the building of this case. The registration of the right to a site of this case has been made as to the remaining portion of the building of this case, and thereby, the right to a site of this case has been registered only as to the remaining portion of the building of this case, thereby leaving the share of this case in its own name is null and void in violation of Article 20 (1) and (2) of

㈐ 소외 2 회사가 이 사건 계쟁지분을 등기부시효취득하였는지 여부

If one of the co-owners has occupied only a specific part of a parcel of land, the requirements of the prescription period for acquiring the registry, which states that “a person who has registered as an owner of real estate” under Article 245(2) of the Civil Act and “when possession of that parcel of land” do not meet the requirements of possession of real estate. As such, the registration of co-ownership with respect to a parcel of land owned by the possessor cannot be deemed as a registration indicating the specific part itself. Thus, the prescription period for acquiring the registry is completed only within the scope of co-ownership share for the specific part (see Supreme Court Decision 93Da4250, Aug. 27, 1993, etc.).

On May 29, 1978, the non-party 2 acquired ownership and commenced possession of the entire site of this case including the shares in the dispute of this case. The completion of the building of this case on the ground of this case, delivered each of the remaining sections except subparagraph 33 of underground, and thereafter owned up to 33 underground. Accordingly, according to the above facts of recognition and the above legal principles, if there are shares to be registered as the right to use the site according to the ratio of the size of the section of exclusive ownership of this case among the shares in the dispute of this case, if there is shares to be registered as the right to use the site according to the ratio of the size of the section of exclusive ownership of this case 33 above, it is likely that the non-party

However, according to the result of the appraisal entrustment with the appraiser at the court of first instance, the site ownership ratio of the underground 33, which is the ownership of the non-party 2, is registered as 5.08/19557 shares of the site in this case. The site ownership ratio according to the ratio of the whole area of the underground 33, is 4.980/1955.7 shares of the site in this case. According to the above facts, according to the above facts of recognition, it can be known that the non-party 2 completed the site ownership registration of the ratio exceeding the right to use the site originally established with respect to the underground 33, so the non-party 2 did not have any shares that can be acquired by prescription among the shares in this case.

Therefore, this part of the plaintiffs' assertion is without merit, without considering the remaining points.

• Whether the plaintiffs can oppose the defendants or not

㈎ 원고들이 집합건물법 제20조 제3항 의 선의의 제3자에 해당하는지 여부

In order for a sectional owner to own a section for exclusive use (Article 2 subparag. 6 of the Aggregate Buildings Act) to establish the right to use a site of a building (Article 2 subparag. 6 of the Aggregate Buildings Act), considering the circumstances where there is no special requirement other than the existence of an aggregate building and the right that a sectional owner is entitled to use the site for the ownership of the said section for exclusive use, a third party under Article 20(3) of the Aggregate Buildings Act refers to a third party who has acquired the land, which is the object of the right to use a site, in principle, by gathering the circumstances that are formed as a site of an aggregate building (see Supreme Court Decision 2009Da26145, Jun. 23, 2009).

At the time when the plaintiffs acquired the share in the instant aggregate building in the public sale procedure, the building of this case, which is an aggregate building, existed on that ground, as well as the registration was made to the effect that the remaining share in this case, excluding the shares in the instant aggregate building, was the land provided as the site ownership in the instant building. In full view of the evidence and the whole purport of the argument as set forth in subparagraph 9, it is reasonable to deem that the plaintiffs knew that the share in this case was part of the instant site, which is the site of the instant aggregate building, through the public auction notification and the copy of the register, etc., and therefore, the plaintiffs cannot be deemed as a bona fide third party under Article 20 (3) of the

On the other hand, the right to use a site is established only if a sectioned building is newly constructed on the land for which the right to use the site is granted. Unless otherwise expressly agreed, separate disposal of the land for which the right to use the site becomes the object of the right to use the site is impossible, and registration or other procedures are not necessary for the establishment of the right to use the site or the right to use the site. In light of the legislative purport of Article 20 of the Act on the Ownership and Management of Aggregate Buildings to prevent the occurrence of sectional ownership without the right to use the site by preventing the separation of the former part of the right to use the site from the former part of the aggregate building, and prevent the occurrence of sectional ownership without the right to use the site, it is reasonable to interpret the third party as the person who acquired the land which becomes the object of the right to use the site by gathering out the circumstances in which the right to use the site is an aggregate building. However, even if the right to use the site was newly constructed on the land for which the right to use the site becomes the object of the right to use the site, it cannot be seen as a bona fide third party's share.

Therefore, this part of the plaintiffs' assertion is without merit.

㈏ 피고들의 주장이 신의칙, 금반언의 원칙에 반하거나 피고들의 주장에 실권의 법리가 적용되어야 하는지 여부

Considering all the circumstances revealed in the proceedings of the instant pleading, including the evidence Nos. 20 and 21 of the evidence Nos. 20 and 21 as seen earlier, the process during which the dispute in the instant case remains in the name of Nonparty 2, it is difficult to view that the circumstances alleged by the Plaintiffs alone are against the principle of good faith, the doctrine of the opposite speech, or the doctrine of the forfeited rights of the Defendants’ assertion, to be applied.

Therefore, this part of the plaintiffs' assertion is without merit.

· Sub-committee theory

With respect to the entire site of this case, the right to use the site of this case for the possession of each section of exclusive ownership was established at the ratio of each section of exclusive ownership among the entire sections of exclusive ownership of this case, and there is no circumstance to deem that each section of exclusive ownership of this case and the right to use site of this case can be separately disposed of. Thus, it is null and void for non-party 2 to register the division of the building of this case and register the right to site ownership at the ratio arbitrarily determined not to the above ratio. Accordingly, the registration was made to the effect that the remaining portion of the site of this case remains in the name of the non-party 2, and there is no circumstance to oppose the defendants.

Ultimately, the registration under the name of Nonparty 2, for which the instant dispute was completed, is invalid. Thus, the acquisition by the Plaintiffs of the instant dispute in the name of Nonparty 2 is also null and void.

Therefore, the plaintiffs' assertion of the preliminary claim is without merit.

IV. Conclusion

Therefore, the part of the plaintiffs' claim for confirmation of ownership is dismissed as it is unlawful. The part of the plaintiffs' claim for confirmation of ownership added in the trial is expanded from the main claim and the main claim of the plaintiffs' claim for the main claim, which has been changed from the trial to the main claim, and all of the conjunctive claims of the plaintiffs' claim for the main claim are dismissed as it is without merit. The part of the plaintiff's claim for the main claim against the defendants shall be dismissed as it is without merit. The judgment of the court of first instance is just and it is dismissed as it is so decided as per Disposition by the assent of all.

[Attachment]

Judge Park Jong-hee (Presiding Judge)

1) (1) Where an application is made under Article 56 (Application for New Registration of House Ledger) or 57 (Application for Change in Registration of House Ledger) or ex officio, the competent authority may have public officials under its jurisdiction investigate the matters regarding the manifestation of the building.

2) Article 42(4) through (6) of the Registration of Real Estate Act newly established on April 10, 198 was maintained as it was at the time of August 12, 1998. In relation to Article 5-805 of the Registration of Real Estate Act (amended on August 12, 1998 in relation to Article 42(4) of the said Registration of Real Estate Act (amended on August 12, 1998), if the owner of land newly constructed an aggregate building with intent to establish a right to use a site only with respect to a portion of the site, which is an aggregate building, while constructing an aggregate building, he can only obtain a right to use a site on the premise that “where a construction company intends to newly construct an aggregate building on the part of a lot of land and obtain a right to use a site registration at the same time with respect to a building, only the portion of the land, on which the building is located, may be disposed of separately from the portion of the land subject to a right to site ownership.”