[1] Whether an owner of a site of an aggregate building is a person entitled to seek removal of a section for exclusive use against a sectional owner of a building who has no right to use the site (affirmative)

[2] The case holding that where sales have been concluded by the claim that the share of one-half of the share owners of a sectioned building and one-half of the share owners of a sectioned building shall be sold at the market price from among the sections in which the right to use the site is not available, only one-half of the share among the sections in a sectioned building shall be returned as unjust enrichment the rent equivalent to 1/2 of the section in whole and part of the site and the rent equivalent to 1/2 of the site in whole

[1] According to the Act on the Ownership and Management of Aggregate Buildings, if a sectional owner who has no right to use the site exists, a person who has the right to seek removal of that section of exclusive ownership may claim the sectional owner to sell his sectional ownership at the market price. The site owner of an aggregate building is a person who has the right to seek removal of that section of exclusive ownership against the sectional owner who has no right to use the site.

[2] The case holding that where sales have been established by claiming that the share of one-half of the share owners of a sectioned building and one-half of the share owners of a sectioned building should be sold at the market price from among the sectioned buildings with no right to use the site, only one-half of the share of the sectioned shall be returned as unjust enrichment, while only one-half of the share of the sectioned building is owned and used, and rent equivalent to one-half of the share of the sectioned building and the whole right to the site shall be returned as unjust enrichment.

[1] Article 7 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 7 of the Act on the Ownership and Management of Aggregate Buildings, Article 741 of the Civil Code

Plaintiff

Defendant

May 1, 2007

1. The defendant receives money from the plaintiff from 46,250,000 won to the time when he delivers the real estate listed in the separate sheet Nos. 2 from May 2, 2006 to the time when he receives money from the plaintiff, and simultaneously simultaneously takes the procedure for registration of ownership transfer for one half of the above real estate as to one half of the above real estate on September 22, 2006, and transfers the above real estate.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 10% is borne by the Plaintiff, and 90% is borne by the Defendant, respectively.

At the same time, the defendant receives money from the plaintiff 41,250,000 won from May 2, 2006 to the delivery date of the real estate indicated in the separate sheet from May 2, 2006 from the amount calculated by deducting 7,50,000 won per month from the amount to the delivery date of the real estate indicated in the separate sheet, and simultaneously takes the procedure for registration of ownership transfer for one half of the above real estate

1. Facts of recognition;

(a) Establishment of a right to collateral security on a building site and building;

(1) As of June 5, 1998, Nonparty 1 and Nonparty 2 acquired one half of the shares of each of the site (hereinafter “each of the instant site”) and the second floor housing (hereinafter “former housing”) on each of the land in Jyang-dong, Seoul Special Metropolitan City (each of the lot numbers omitted), and completed the registration of ownership transfer.

(2) On June 18, 1998, Korea Housing and Commercial Bank Co., Ltd. established a joint collateral of KRW 350 million with respect to each of the instant sites and housing units, the maximum debt amount of KRW 351 million.

B. Removal of the old house of this case and establishment of provisional registration

(1) Nonparty 1 and 2 removed the old house of this case around June 1998, newly constructed on each site of this case real estate listed in the attached Table 1 (hereinafter “new building”) including real estate listed in the attached Table 2 attached hereto (hereinafter “the partitioned building of this case”) and completed the registration of initial ownership as to one half of the shares as of May 25, 199.

(2) As of June 16, 1999, Nonparty 3 completed the registration of Nonparty 1 and 2’s right to claim a transfer of all co-ownership of the instant partitioned building and its site ownership.

C. Plaintiff’s right to site and completion of partial principal registration based on provisional registration

(1) On February 28, 2006, the Plaintiff: (a) at the auction procedure where the Korea Housing and Commercial Bank Co., Ltd. (Korea Housing and Commercial Bank around 2000, around 2317, issued a decision to commence each of the instant sites; (b) 36.91/1 of the instant partitioned land and the ownership of the site; and (c) paid the successful bid price in full.

(2) On the basis of the above provisional registration, Nonparty 3 completed the principal registration of the transfer of equity ownership as of April 26, 2006 with respect to Nonparty 2-2 of the instant partitioned building on the basis of the above provisional registration, and completed the registration of transfer of equity ownership as of May 12, 2006, and the Defendant occupied and used the instant partitioned building.

D. Market price and rent of the sectioned building of this case

From May 2, 2006 to March 15, 2007, prices equivalent to 1/2 of the partitioned building of this case are 46,250,000 won, and the monthly rent corresponding thereto is 142,00 won, monthly rent corresponding to the share of the site of this case is 284,000 won, and it is expected that the subsequent amount will be equal.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 5, Eul evidence 1 to 4, the result of appraisal of the appraiser's right to use, the purport of the whole pleadings

2. Determination:

(a) Obligation to transfer ownership;

According to the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act"), if there is a sectional owner who does not have the right to use the site, a person who has the right to claim the removal of the section for exclusive use may claim that the sectional owner sell his sectional ownership at the market price. The owner of the site of an aggregate building shall be a person who has the right to claim the removal of the section for exclusive use against the sectional owner who has no right to use the site at the market price.

According to the above facts, the plaintiff is the owner of the site of this case and the owner of 1/2 of the partitioned building of this case who has no right to a site ownership, and the defendant owns 1/2 of the partitioned building of this case which has no right to use the land of this case, and the plaintiff has the right to seek removal of the partitioned building of this case corresponding to the ownership shares. Therefore, the plaintiff can claim that the defendant sell the ownership shares in accordance with the Aggregate Buildings Act at the market price, and on September 22, 2006, the sale of the shares owned by the defendant among the partitioned building of this case, which was delivered to the defendant on September 22, 2006, by the plaintiff's expression of intent to exercise the right

B. Judgment on the defendant's assertion

The defendant asserts that the defendant cannot respond to the plaintiff's claim since he acquired legal superficies as to the shares of the defendant among the partitioned buildings of this case.

Unless there are special circumstances, such as where the owner of the land is identical to the owner of the land and where the new building is removed after the joint mortgage was established on the land and the building owned by the same person, and the new building is newly constructed, the auction of the mortgaged shall not establish legal superficies for the new building even if the land and the new building belong to another owner (see Supreme Court en banc Decision 98Da43601 delivered on December 18, 2003). According to the above facts, since the joint mortgage was established on each of the lots of lots of lots of lots of lots of lots of lots of lots of lots of lots of lots of lots of lots of lots of new buildings, the new building of this case, including the new building of this case, was removed, and the new building of this case was newly constructed, and there was no joint mortgage established on the same order of priority for the new building of this case, so even if each of the lots of lots of lots of lots of lots of new buildings belongs to the owner of another building, it is not necessary to acquire the legal superficies of this case as part of the newly constructed of this case.

(c) Calculation of sale amount, deduction of rent, etc.;

(1) According to the above facts, since the price equivalent to a half of the partitioned building of this case is KRW 46,250,000, the plaintiff is obligated to pay it to the defendant in the purchase price.

(2) The Plaintiff asserts that, from the above purchase price with the Defendant, only one half of the shares in the instant partitioned building is occupying and using one half of the shares in the instant partitioned building owned by the Plaintiff, and that the amount of the rent per se should be deducted until the instant building is transferred.

According to the above facts, the plaintiff owns all of the shares of 1/2 of the partitioned building of this case and the right to the site of this case, and the defendant possesses only one half of the shares of this case, while the whole of the partitioned building of this case is occupied and used, it seems that the rent equivalent to 1/2 of the partitioned building of this case and the whole right to the site of this case should be paid as unjust enrichment. From May 2, 2006 to March 15, 2007, monthly rent equivalent to 1/2 of the partitioned building of this case is 142,00 won, and monthly rent corresponding to the shares of the site of this case is 284,000 won, and it is expected that the amount thereafter would be equal. Thus, the defendant is obligated to pay the above rent of 426,000 won to the plaintiff from May 2, 206 to the delivery of this case to the above division building of this case. Thus, the plaintiff's assertion that the defendant is obligated to pay the above rent of unjust enrichment of this case as the plaintiff.

(d) Conclusion

Therefore, the defendant receives money from the plaintiff from May 2, 200 to the delivery of the sectioned building of this case from May 2, 2006 after deducting the amount calculated by adding 426,00 won per month from the plaintiff to the delivery of the sectioned building of this case. At the same time, the registration procedure for transfer of ownership for one half of the sectioned building of this case was conducted on September 22, 2006 and is obligated to deliver the sectioned building of this case to the plaintiff.

3. Conclusion

Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.

Judges Park Jong-chul