Plaintiff

Defendant 1 and 22 others (Bae, Kim & Lee LLC, Attorneys Lee Dong-sik, Counsel for the defendant-appellant)

April 12, 2017

1. The Plaintiff:

A. Defendant 1, Defendant Han Bank, Defendant 3, Defendant 4, Defendant 5, Defendant 6, Defendant 10, Defendant 11, Defendant 12, Defendant 13, Defendant 14, Defendant Love Counseling Center, Defendant 18, Defendant 22, and Defendant 23, respectively, in collaboration with Defendant 9, the amount corresponding to the “amount of award by each Defendant” as set forth in the attached Table, and the amount of award by each Defendant 3,64,313, Defendant 7, Defendant 7, and Defendant Shin Chang Young-gu Co., Ltd., Ltd., jointly with Defendant 9, KRW 1,79,195, KRW 368,69, Defendant 19, Defendant 20, and Defendant 17, jointly with each of the above 3,64, and KRW 313,517, May 17, 2017 and each of the above 15% annual amount from the following day to 368,169, Defendant 200, and Defendant 217 jointly.

B. The Plaintiff’s ownership loss or the Defendants’ termination of possession from February 1, 2017 to December 31, 2017, Defendants 1, 3, 4, 5, 6, 10, 11, 12, 22, and 23 as indicated in the “three-period rental fee” column in the attached Table No. 12, the Defendant Han Bank as indicated in the attached Table No. 387,029, KRW 273,119, KRW 7, and KRW 707, KRW 304, KRW 48, and KRW 9, KRW 2732, KRW 132, KRW 192, KRW 132, KRW 132, KRW 132, KRW 10, KRW 135, KRW 468, KRW 146, KRW 275, KRW 275, KRW 146, KRW 275, KRW 146, and KRW 275, KRW 1465, KRW

sub-payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. The costs of lawsuit shall be borne by the Defendants.

4. Paragraph 1 can be provisionally executed.

The Plaintiff; 1,687,284 won; 5,192,612 won for Defendant Han Bank; 1,528,290 won for Defendant 4; 1,779,196 won for Defendant 5; 1,885,118 won for Defendant 6; 1,528,290 won for Defendant 6; 3,64,314 won for Defendant 7; 7; 1,679,196 won for Defendant Shin Chang-sung Co., Ltd.; 1,500 won for Defendant 2; 1,57; 1,579,79,196 won for Defendant 2; 1,57; 1,529,11,29, 12, 1,503, 197, 47, 196, 37, 194, 196, 27, 194, and 15.

1. Basic facts

A. The relationship between the parties

1) In the process of public sale on November 23, 2015, the Plaintiff purchased 48.44/707 shares (hereinafter “instant shares”) among 704m2 (hereinafter “instant land”) in Gangseo-gu Seoul Metropolitan Government ( Address omitted) and completed the registration of ownership transfer in the name of the Plaintiff on December 17, 2015.

2) The Defendants, as sectional owners of ○○○○○ Building, which is an aggregate building of the 12th floor above the instant land (hereinafter “instant building”), have completed the registration of ownership transfer as to each corresponding section of exclusive ownership as indicated in the “acquisition of ownership” column of the attached list on the corresponding date as indicated in the attached list, and have owned it until now (However, in the case of Defendant 7, Defendant Shin Chang-scopic Co., Ltd., Defendant 9, Defendant 16, and Defendant 17, and Defendant 101 through 102, share 1/2 of each of Defendant 19 and Defendant 20, and share 5/10, 3/10, 201 through 203, and 2/102 of the existing shares of the co-trustees and co-trustees of the Plaintiff bank, one of the co-trustees and co-trustees of the above consolidated merger.

B. New construction and registration relations of the building of this case

1) On September 16, 2005, 2005, Eco Co., Ltd. (hereinafter “Eco”) completed the construction permit of the instant building in the form of sectional ownership with the site area as 655.56 square meters, and completed the construction permit of the instant building. On the same day, the collective building register consisting of 65.56 square meters of the site area as to the instant building.

2) On October 5, 2005, with respect to the portion of 655.56/704 shares in the registry of the instant land, the registration of the purport that it is the site ownership of the instant building was completed, and with respect to the remaining 48.44/707 shares (the portion corresponding to the Plaintiff’s shares) in the register of the instant land, the registration of the purport that it is the site ownership remains in the name of Ecoco as is without completing the registration of the remaining 48.44/707 shares (the part corresponding to the Plaintiff’s shares). On the same day, each section of exclusive ownership was registered in the name of Ecoco as to each section of exclusive ownership, and each section of exclusive ownership was registered as the ground for registration, “the site ownership right,” “the site ownership right,” “the site ownership right,” “the site ownership right,” and “the share of 704 shares in the registration column of the attached list,” and the registration of the site ownership as in the registration of an aggregate building.

C. Possession and use of the instant land

The Defendants, as a sectional owner of the instant building, occupy and use the entire land of this case as the site through the ownership of each corresponding section for exclusive use.

[Ground of recognition] Evidence Nos. 1 through 3, Evidence No. 2, and the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

1) If the sectional owners of one building own the site of the building in proportion to the share of co-ownership at the time the initial building was sold in lots, barring any special circumstance, the sectional owners are legally entitled to use the entire site of the building according to the use of the entire site regardless of the share of co-ownership in the site, barring any special circumstance, and thus, the sectional owners cannot seek a return of unjust enrichment among the sectional owners on the ground of a difference in the share of co-ownership. However, in cases where a person, other than the sectional owners of a building, acquires only co-ownership in the auction procedure, etc., and is not able to use and make profits from the site at all, barring any special circumstance, he/she may claim a return of unjust enrichment based on his/her co-ownership right (see, e.g., Supreme Court Decisions 2010Da108210, May 24, 2012;

2) According to the above facts, the Defendants occupied and used the entire land of this case through the ownership of each of the pertinent sections of exclusive ownership of the instant building. As to the Plaintiff’s share in the instant land, without any legal ground, gain profits equivalent to the rent corresponding to the area of shares to be registered as the site ownership of their own building, and inflict damages on the Plaintiff in proportion to the same amount. Therefore, barring any special circumstance, the Defendants are obliged to return the amount of profit from the possession and use of the Plaintiff’s share to the Plaintiff as unjust enrichment.

B. Determination as to the defendants' assertion

1) The Defendants failed to attach a notarial deed, etc. to the purport that the instant Plaintiff’s share can be disposed of separately from the section for exclusive use of the instant building without attaching a notarial deed, etc. to the effect that the registration procedure was lawful. Accordingly, the Defendants asserted that the Plaintiff’s share acquired against the prohibition of separate disposal of the section for exclusive use and the right to use the site under Article 20(2) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”).

2) Where the registration of ownership transfer is completed with respect to real estate, the titleholder of the registration is presumed to have acquired ownership through lawful procedures and causes. The fact that the registration is null and void due to such procedures and causes is borne by the claimant. However, where it is proven that there are doubtful circumstances that the registration procedure does not lawfully run, the presumption power is broken (see, e.g., Supreme Court Decision 2010Da21702, Jul. 22, 2010). In addition, the sectional owner’s section for exclusive use and right to use site cannot be disposed of separately in principle (see, e.g., the main sentence of Article 20(2) of the Aggregate Buildings Act); disposal of the site contrary to the unity of the section for exclusive use and right to use site cannot be effective (see, e.g., Supreme Court Decision 2006Da84171, May 27, 2010). However, if the sectional owner’s right to use the site and the right to use site can be separately stated in the application under Article 208(2).

3) In light of the following circumstances acknowledged by comprehensively taking into account the following circumstances, which are acknowledged as follows, the health team return to the instant case, Eul 2, Eul 3, 7, and 8 (including documentary evidence with a serial number), the testimony of Non-party 1 by the witness, and the fact-finding with respect to non-party 2 to the certified judicial scrivener of this court, the purport of the entire arguments as to the fact-finding with respect to the non-party 2 of this court, it is reasonable to deem that the presumption of the right to a site registration, etc. of this case, etc. of this case, has broken down because there is a doubtful circumstance that the procedure was not run lawfully without attaching a notarial deed stating that the Plaintiff’s share among the instant land constituting a statutory site may be disposed of separately from the section of exclusive ownership. Accordingly, since the Plaintiff’s share cannot be disposed of separately from the section of exclusive ownership as a right to use the site of

① On October 5, 2005, when ECo has completed registration of ownership preservation with respect to all sections of exclusive ownership of the instant building, there is no room to establish a rule that the Plaintiff’s share may be disposed of separately from the section of exclusive ownership because it owned the entire section of exclusive ownership.

② Of the documents submitted by Eco on October 5, 2005 to the Dobong District Court of Seoul Northern District, there is no notarial deed among the documents attached to the application for registration of ownership preservation of aggregate buildings and only the documents attached to the agreement.

③ Nonparty 2 certified judicial scrivener who was delegated with the above application for registration of ownership preservation, did not have received or prepared a notarial deed with the purport that it is possible to separate the Eco at the time, and only was accompanied by an application for registration with the establishment of the rules in accordance with the list of the site ownership ratio received from Eco and affixed a seal to the corporate seal.

④ At the time, Nonparty 1, the representative director of Ecoco, who delegated the application for registration to Nonparty 2, did not prepare a notarial deed with the content that it is possible to separately dispose of Nonparty 1, and there was no demand from the said certified judicial scrivener to prepare such notarial deed. As to the reasons for not preparing such notarial deed, it is memoryd because it was intended to transfer the Plaintiff’s shares to the buyer according to the sales contract without the intention to separately dispose of the Plaintiff’s shares.

4) Therefore, the Defendants’ above assertion is with merit.

C. Judgment on the Plaintiff’s assertion

1) On this ground, the plaintiff himself is believed to have a notarial deed that he is a right to a site only with respect to his share 655.56/704 shares in the register of the land in this case, and the registration of the right to a site in this case remains in the name of Eco without completing the registration of the right to a site. The total sum of the right to a site registration of all sections for exclusive use of the building in this case is also 655.56/704, and therefore, the plaintiff constitutes a bona fide third person in good faith under Article 20(3) of the Aggregate Buildings Act and the defendants cannot oppose the plaintiff as a prohibition of separate disposition.

2) The main sentence of Article 20(3) of the Aggregate Buildings Act provides that the prohibition of separate disposal under the main sentence of Article 20(2) of the same Act shall not be asserted against a third party who has acquired real rights in good faith unless the purport thereof is registered. Here, the third party’s "faith", which cannot be asserted as the prohibition of separate disposal, refers to a third party who has acquired land which is the object of a right to use the site, in principle, without gathering the situation in which the land is deemed a site of an aggregate building (see Supreme Court Decisions 2009Da26145, Jun. 23, 2009; 2010Da71578, Jan. 17, 2013, etc.).

Meanwhile, it is not stipulated that a right to a site can be separately disposed of by regulations or notarial deeds among the right to use the site (Article 42(4) of the former Registration Act). If a right to a site is not registered even if there exists a right to a site, a partitioned building and a right to a site may be separately disposed of. As such, the Registration of Real Estate Act has a system for registering a right to a site that does not register the right to the land disposed of as a combination of sections for exclusive use in the registration record but records of a building and records it in the registration record of a building so that the effect of the registration may be omitted to the land. In addition, it means a right to a site registration that prohibits a separate disposition. This is because there is no provision that a separate disposition may be registered under the Registration of Real Estate Act

Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to view that the third party of the “Bona fide” who acquired the land which is the object of the right to use a site without gathering the circumstance that is a site of an aggregate building includes a person who has acquired the remainder of the right to use a site in beliefing that the registration of the right to a site or the right to a site of an aggregate building is completed only with respect to a part of shares of the land in the register for an aggregate building and the register for land ownership, and that the registration of the right to a site or a right to a site of an aggregate building has not been completed with respect to the remainder of shares in the register that is not registered as a right to a site or a right to a site of an aggregate building. Therefore, the defendants cannot oppose the plaintiff who is the third party

D. Scope of return of unjust enrichment

1) Pursuant to Article 21(1) of the Aggregate Buildings Act, a sectional owner of the site ratio to be registered according to the size ratio of each corresponding section of exclusive ownership owned by the Defendants is identical to each corresponding share listed in the separate sheet, and the sectional owner of the actual registered site ratio is identical to each corresponding share listed in the "registration share" listed in the same list. Thus, the Defendants possess and use another's land share as the corresponding share in the shortage of ownership. However, among the buildings of this case, the ownership registration has been completed exceeding 12.07/704 shares compared to the ownership ratio of the whole area in the future between Nonparty 3 and two, the owners of the building of this case, the non-party 3 and the non-party 2, the owner of which are the owner of the building of this case, and thus, the Defendants' shortage of land ownership ratio (i.e., the ownership ratio compared to the whole area ratio - the registration share) and only the portion calculated by deducting the portion corresponding to the portion corresponding to the portion corresponding to the non-party 3 and the plaintiff's share in separate sheet 1.

Meanwhile, according to the result of the court’s appraisal of rent against Nonparty 4, the fact that the fixed-term rental fee from December 17, 2015 to December 31, 2015 is KRW 1,308,700, and the fixed-term rental fee from January 1, 2016 to December 31, 2016 is KRW 32,212,60, and the monthly rental fee from January 1, 2017 to December 31, 2016.

Therefore, when calculating the amount of unjust enrichment equivalent to the rent for each section of exclusive ownership from December 17, 2015 to December 31, 2015, the amount equivalent to the rent for the period from January 1, 2016 to December 31, 201, and the amount of unjust enrichment equivalent to the rent for the period from January 1, 2017 to January 31, 2017, the term “one-term rental fee” in attached Table 1, the term “two-term rental fee”, the term “three-term rental fee”, and the term “total amount” shall be as the amount corresponding to each item of exclusive ownership, and therefore, the amount equivalent to the rent for the period from December 17, 2015 to January 31, 2017 to the amount equivalent to the amount of unjust enrichment for the period from January 31, 2017 as stated in attached Table 1.

2) Accordingly, Defendant 2: (i) the Plaintiff’s joint interest rate of KRW 10, KRW 25, KRW 37, KRW 17, KRW 47, KRW 47, KRW 17, KRW 25, KRW 17, KRW 47, KRW 47, KRW 17, KRW 47, KRW 25, KRW 17, KRW 47, KRW 196, KRW 27, KRW 17, KRW 47, KRW 27, KRW 196, KRW 27, KRW 197, KRW 27, KRW 197, KRW 47, KRW 196, KRW 27, KRW 197, KRW 197, KRW 27, KRW 196, KRW 197, KRW 27, KRW 37, KRW 197, KRW 196, KRW 167, KRW 197, KRW 167, and KRW 17,57, KRW 37,5.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and each remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Jind Crime

1) Shortages = (Land shares in comparison with the total area ratio - Registration shares) ¡¿ Plaintiff’s shares in this case 48.44/ (102 excessive shares in 12.07 + 48.44)

2) Pursuant to Articles 748(2) and 749(2) of the Civil Act, a malicious beneficiary shall compensate for any loss incurred in return of the interest that he/she received with interest added thereto, and when a bona fide beneficiary has lost, he/she shall be deemed a bona fide beneficiary from the time the lawsuit was brought against him/her. In such cases, the term “when a lawsuit is brought” means when a lawsuit seeking the return of unjust enrichment is pending, i.e., when a duplicate of the complaint is served on the Defendant (see Supreme Court Decision 2012Da119481, Feb. 13, 2014), and it is reasonable to view that the same applies to cases where the amount of the claim was extended after the lawsuit was filed, insofar as the cause for claiming the return of unjust enrichment is the same (see Supreme Court Decision 2016Da41