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(영문) 서울동부지방법원 2009. 3. 27. 선고 2008나7668 판결
[부당이득금][미간행]
Plaintiff, Appellant and Appellant

Plaintiff (Law Firm Cheong, Attorneys Yang Jae-ho et al., Counsel for the plaintiff-appellant)

Defendant, Appellants and Appellants

Defendant

Conclusion of Pleadings

March 6, 2009

The first instance judgment

Seoul Eastern District Court Decision 2008Gadan17794 Decided August 28, 2008

Text

1. Of the judgment of the court of first instance, the part against the defendant ordering the plaintiff to pay in excess of 5% per annum from August 22, 2008 to March 27, 2009 and 20% per annum from the next day to the day of complete payment, and the part against the defendant ordering the plaintiff to pay in excess of 23,530,426 won per annum, and the plaintiff's claim corresponding to the above revoked part shall be dismissed.

2. The plaintiff's appeal and the defendant's remaining appeal are dismissed, respectively.

3. The total costs of the lawsuit shall be divided into two parts, one of which shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 4,956,063 won with 5% interest per annum from the day following the delivery of a copy of the application for modification of the purport of the claim as of August 18, 2008 to the day of the judgment of the court of first instance, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff shall be revoked, and the defendant shall pay to the plaintiff 19,191,067 won with 5% interest per annum from August 22, 2008 to August 28, 2008 and 20% interest per annum from the next day to the date of full payment.

Defendant: The part against Defendant among the judgment of the first instance court is revoked, and the Plaintiff’s claim corresponding to the above revocation is dismissed.

Reasons

1. Basic facts

A. On September 29, 1994, Nonparty 2 and four others newly built retail stores, sales stores, 132.48 square meters and offices, and 46.5 square meters in storage on the Sungdong-dong (number 1 omitted) and 460.2 square meters (hereinafter “instant site”).

B. On December 1, 1998, the Defendant purchased 1/2 of the instant land from Nonparty 3, and 1/2 of the remainder of the instant land from Nonparty 4, who is the Defendant’s birth, on November 5, 1999.

C. On March 21, 2000, the Defendant and the above non-party 4 newly constructed a warehouse of 60.45 square meters between the above retail store and the office on the instant land.

D. On March 15, 2002, the Defendant purchased light-scale steel-frame retail stores, offices, and warehouses 239.43 square meters (hereinafter “the instant building”) on the instant land and completed the preservation and transfer registration on the 19th day of the same month.

E. On December 10, 2003, the Defendant leased to Nonparty 1 (non-party to the judgment of the Supreme Court) approximately 30 square meters of the car center part of the instant building and its surrounding land up to KRW 30 million, monthly rent of KRW 1 million, and the period of December 30, 2005.

F. On March 24, 2004, the Plaintiff purchased the instant land and building, completed the registration of ownership transfer on March 31, 2004, and succeeded to the lessor status under the said lease agreement, and continued to lease the instant land and building on December 31, 2005 by raising 1.1 million won to Nonparty 1 on December 31, 2005.

G. However, among the instant buildings, part of the car center building leased to Nonparty 1 was built on a 27.1 square meter of the same land (number 2 omitted) adjacent to the instant land (hereinafter “the adjoining land”). Nonparty 1, who was f9.8 square meter of the adjoining land of this case, was buried on a 69.8 square meter of the adjoining land, and installed a retaining wall and fence built on a 69.8 square meter of the adjoining land of this case, leased it from the beginning to use it as a parking lot in the automobile

H. Nonparty 5 and 6, the land owner adjacent to the instant case, filed a lawsuit against the Plaintiff on the removal of the adjacent part of the instant building and the claim for restitution of unjust enrichment due to illegal possession (hereinafter the previous lawsuit) from among the instant buildings, Daejeon District Court Decision 2006Gadan19807, Daejeon District Court Branch, Daejeon District Court Decision 2006Gadan19807, and the Plaintiff removed the adjacent part of the instant land and delivered the occupied land on February 9, 2007, which was in the said lawsuit.

I. From April 1, 2004 on the day following the date of acquiring the ownership of the building site and building of the instant case, the court rendered a judgment of partial failure to bring down the judgment on the Plaintiff’s complaint to the effect that the Plaintiff shall pay 15,314,113 won of the rent party’s unjust enrichment from April 1, 2004 to February 9, 2007 where the land was removed and the land was delivered, and damages for delay thereon.

[Evidence] Facts without dispute, Gap evidence Nos. 1, 12, 16 through 19, 22, 24, 25 (including branch numbers, if any) and the purport of the whole pleadings

2. Determination

A. The parties' assertion

The plaintiff, who purchased part of the building of this case from the defendant, caused 4,956,063 damages, such as expenses for responding to the previous lawsuit, expenses for compelling removal of the non-violationed building, expenses for removal of machinery against lessee, compensation for removal of machinery, and expenses for removal of strings, etc., on the wind that part of the building of this case purchased from the defendant was revealed to have infringed upon another person's land, 17,01,960 won, which was deposited as unjust enrichment due to illegal possession, and 4,956,063 won. The plaintiff asserts that the defendant sold the building of this case against another person's land, which

The defendant also did not know that the present situation of the building of this case, unlike the drawing, was in violation of the connected land of this case, and did not have a duty of care to anticipate and measure it, and did not sell the money paid by the plaintiff to the plaintiff as the purchaser. Since the money paid by the plaintiff was acquired by illegal occupation of part of the land owned by others, it cannot be said that there was no loss to the plaintiff.

B. Determination

(1) Occurrence of damages liability

(A) Judgment as to the primary cause of action

As seen earlier, the Defendant newly constructed a warehouse of 60.45 square meters among the instant buildings. However, even at the time when the Defendant purchased the instant building site and the instant building, the neighboring land had already been invaded, and the Defendant’s newly constructed building did not infringe on the adjacent building site, and it is insufficient to readily conclude that the Defendant was aware or could have known that the instant building site and the instant building were invaded by the fact that the instant building site and the instant building were invaded by the adjacent building site, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion on this part is without merit.

(B) Determination on the conjunctive cause

According to the above facts, it is reasonable to view that part of the boundary retaining wall and building of the site of this case sold by the defendant to the plaintiff was not equipped with ordinary real estate because it invadeds the land adjacent to the site of this case. Thus, the defendant is liable to compensate the plaintiff for damages caused by the defect.

In regard to this, the defendant's defense that the plaintiff neglected to investigate the location, boundary, shape, use, etc. of the site and building of this case before entering into a contract as the purchaser, and was negligent in not knowing the defects in the site and building of this case. Thus, unless special circumstances exist to the contrary, it cannot be deemed that the purchaser has a duty of care to confirm in advance whether the subject matter of sale is accurately consistent with that in the cadastral map by means of surveying or comparing the land cadastral map with the land cadastral map (see Supreme Court Decision 84Meu2344 delivered on November 12, 1985), and the defendant's defense is without merit.

(2) Scope of damages

(A) Details of damages

① Attorney Fees 2,600,726 won paid by the Plaintiff to respond to the previous lawsuit

[2,100,000 won + (40,014,531 won - 30,000,000 won) ¡¿ 5/100, Daejeon District Court's 2006Gadan19807 Building Removal, etc. Litigations pursuant to the rules concerning the inclusion of litigation costs for attorney's fees in the calculation of litigation costs based on KRW 40,014,531];

The plaintiff sought payment of KRW 5,00,000 from the attorney's fees paid to respond to the previous lawsuit. However, since the part exceeding the above-mentioned attorney's fees cannot be deemed as damages caused by the defect in the land and building of this case, the plaintiff's above assertion is reasonable within the scope recognized above, and there is no reason for the exceeding part.

② A cadastral survey fee of KRW 1,547,700 paid by the Plaintiff for a boundary survey

(3) A 1,902,00 won for the performance of removal of a building on boundary, which has been imposed and paid by the viewing of a tent.

④ Removal of the part of the instant building, removal of the boundary retaining wall, removal of the retaining wall, and removal cost of KRW 12,000,000, and installation cost of the Ka Center machinery removal cost of KRW 5,000,000, and waste disposal cost of KRW 480,000,

⑤ The Plaintiff asserted that the Plaintiff should compensate for damages equivalent to KRW 17,01,960, deposited on December 20, 2007 in accordance with a final and conclusive judgment against the previous lawsuit. However, the said money was returned to the owner of the adjoining land of this case, which is equivalent to the rent that the Plaintiff acquired by leasing the leased part of the land adjacent to this case’s land, and this cannot be deemed as damages caused by the defect of the land and building of this case’s land. Thus, the Plaintiff’s above assertion is without merit.

(6) The Plaintiff asserts that the Plaintiff should compensate for damages equivalent to KRW 2,00,000,000, equivalent to the rent that occurred as a result of the removal and removal of the sunken part for a period of two months or more. However, there is no evidence to acknowledge that the two-month period was required to remove the sunken part and the retaining wall of the sunken part, or that the damage was incurred to KRW 2,00,000,000, the Plaintiff’s assertion

7. The Plaintiff asserts that expenses for cancellation of rights, such as attachment, should be compensated for KRW 14,400,00. However, there is no evidence to prove that such expenses are damages caused by defects in the instant site and building, and the Plaintiff’s above assertion is rejected.

[Evidence Evidence: Evidence Nos. 1, 3 through 6, 9, 10, 14, 20, 21

(b) Calculation: 23,530,426 won

(=2,60,726 won + 1,547,700 won + 1,902,00 won + 12,000,000 won + 5,000,000 won + 480,000 won)

C. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated by the rate of 23,530,426 won per annum under the Civil Act from August 22, 2008 to March 27, 2009, which is the date when the judgment was rendered by the Defendant, to the extent of the existence and scope of the obligation, and the rate of 5% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date when the obligation is fully repaid.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without merit. Since the part against the defendant who ordered payment in excess of the above recognition amount among the judgment of the court of first instance which partially different conclusions is unfair, it shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed, and the plaintiff's appeal and the defendant's remaining appeal shall be dismissed without merit. It is so decided as per Disposition.

Judges Kim Tae-Gyeong (Presiding Judge)

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