Whether a person, who is not a sectional owner, has a right to the land that becomes a site of an aggregate building regardless of his/her exclusive ownership, is subject to the prohibition of separate disposal under Article 20 of the Act on the Ownership and Management of Aggregate Buildings (negative)

The right to use a site is prohibited by Article 20 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act") that a sectional owner has a right to the site of a building for the purpose of owning a section for exclusive use (see Article 2 subparagraph 6 of the Aggregate Buildings Act). Thus, a person who is not a sectional owner has a right to the land which becomes a site of an aggregate building regardless of the ownership of a section for exclusive use (see Article 2 subparagraph 6 of the Aggregate Buildings Act) and is not subject

Article 2 Subparag. 6, and Article 20 of the Act on the Ownership and Management of Aggregate Buildings

Citco Construction Co., Ltd.

Busan Co., Ltd. (Law Firm Han, Attorneys Yu-hwan et al., Counsel for the plaintiff-appellant)

[Attachment] The defendant listed in [Attachment] 1 to 39-1 is as shown in the list (Attorney Go Jong-hee, Counsel for the defendant-appellant)

[Attachment 40] Defendant listed in [Attachment 40] List

[Attachment] Defendant 41 to 53-1 is as shown in the [Attachment] List (Attorney Go Jong-hee, Counsel for the defendant-appellant]

Gwangju High Court Decision 2010Na110, 127 decided December 22, 2010

Of the principal lawsuit in the judgment of the court below, the part on the claim for return of unjust enrichment with respect to 1,682.9m2 in the Dong-dong (number omitted) is reversed, and this part of the case is remanded to the Gwangju High Court. The appeal by the Defendant (Counterclaim Plaintiff) as indicated in the [Attachment] Nos. 1 through 39-1 is all dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal by the plaintiff (including the counterclaim defendant)

A. According to the reasoning of the judgment below and the evidence adopted by the court below, (1) the non-party newly constructed a single-story market building on the ground of 1,682.9m2 (hereinafter "the site in this case") Dong-dong (number omitted) Dong-dong on July 23, 1971, and (2) from March 1978, the share of the site in the above market store and the market store among the land in this case (hereinafter "site share") to be registered as the site ownership of the non-party is to be sold within 7 years after expanding the market building and selling it within 0 years or within 7 years, the share of the site in this case is to be transferred to the non-party 2, 300,000,000,000 won for free use of the site in the market as the site of the non-party 1,000,0000,000,0000 won, and the non-party 2,000,000 won.

B. The plaintiffs asserted that, as the principal claim, from March 27, 2002 to September 11, 2006, the plaintiff Habul Construction was owned by the plaintiff Habul. Since the defendant (including the plaintiff Counterclaim, the plaintiff Counterclaim, the plaintiff Counterclaim, and the successor ) without any title occupied, used, or occupied and used the site of this case without any title, the plaintiff is obligated to pay the plaintiff Habul unjust enrichment equivalent to the rent.

The court below held that Bosung Unemployment was succeeded to the duty to the buyers of the non-party related to the building site of this case at the same time after being transferred from the non-party to the transfer of the building site of this case, i.e., to allow buyers to use the building site of this case without compensation at market stores, and after the building was extended, the seller's right to occupy and use the building site of this case is also deemed to have been the right to use the building site of this case under the Aggregate Buildings Act by applying Article 20 of the Aggregate Buildings Act to the right to occupy and use the building site of this case. Thus, it is reasonable to view that Bosung Unemployment violated the plaintiffs' right to use the building site of this case as the right to occupy and use the building site of this case or the defendants who acquired the right to use the building site again from such buyers, and that the buyer's act of establishing the right to use the building site of this case by the Hong Kong Bank in the future is invalid under Article 20 of the Aggregate Buildings Act based on the plaintiffs' share in the right to use the building of this case.

C. However, we cannot agree with the above determination by the court below for the following reasons.

(1) The right to use a site, which is prohibited from a separate disposition pursuant to Article 20 of the Aggregate Buildings Act, is a right that a sectional owner has against the site of a building in order to own a section for exclusive use (see Article 2 subparagraph 6 of the Aggregate Buildings Act). Thus, the right that a person who is not a sectional owner has against the land which is a site of a aggregate building regardless of the ownership of a section for exclusive use is not subject to a restriction on the

(2) In this case, the non-party's transfer of ownership ownership of the site in this case separately from the market store is prior to the application of Article 20 of the Aggregate Buildings Act, and thus, the separate disposition is valid, and the ownership of the land in this case, which is an aggregate building, is not the right of the sectional owner to the site of the building in order to own the section for exclusive use. Thus, in light of the above legal principles, the ownership transfer registration in the plaintiffs' name based on the act of establishing the right to collateral security in the future of the Hong Kong Hong Kong Bank with respect to the site in this case and the auction based on the above collateral security shall not be deemed to go against the prohibition of separate disposition under Article 20 of the Aggregate Buildings Act, regardless of whether the right to collateral unemployment succeeds to the buyer's right to share in the land.

(3) Nevertheless, the court below erred by misapprehending the legal principles on the application of Article 20 of the Multi-Family Building Act, which held that the act of establishing the right to collateral security in good faith is null and void against the prohibition of separate disposition.

2. As to the Defendant-Counterclaim Plaintiff’s ground of appeal

According to the reasoning of the judgment below, the court below rejected the above assertion on the ground that the defendant Lessee (Lessee) was liable to implement the procedure for the ownership transfer registration based on the real name recovery of the shares in the instant site, since the defendant Lessee acquired the right to use the site under the Aggregate Buildings Act with respect to the shares in the instant site, and that the defendant Lessee was not obligated to perform the procedure for ownership transfer registration based on the real name recovery with respect to the shares in the instant site, and that there was no registered registration with respect to the shares in the instant site in the name of the defendant Lessee and that the defendant Lessee did not have acquired the ownership

In light of the relevant legal principles and records, the above judgment of the court below is just, and it did not err by misapprehending the legal principles on the ownership transfer registration or the right to use site under the Act on the Ownership and Management of Aggregate Buildings, or by failing to perform the duty of explanation (the grounds for appeal by the defendant (Counterclaim Plaintiff) is premised on the invalidity of the act of the non-party to dispose of the site in Bosung Unemployment, and its assertion cannot be accepted in the sense that the disposition cannot be seen as null

3. Conclusion

Therefore, among the principal lawsuit of the lower judgment, the part on the claim for return of unjust enrichment on the site of this case is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal by the Defendant (Counterclaim Plaintiff) as indicated in [Attachment 1] to 39-1 is all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Defendant: omitted

Justices Park Poe-young (Presiding Justice)