Incheon District Court-2016 Ghana-204188 ( December 23, 2016)

The registration of seizure and mortgage established on the site after the establishment of divided ownership should be cancelled against Article 20 of the Aggregate Buildings Act.

After the completion of an aggregate building and the acquisition of a right to use site, seizure and establishment of a mortgage on the site is not allowed as an act contrary to the prohibition of separate disposal of the right to use site under Article 20 (2) of the Aggregate Buildings Act.

Article 20 of the Aggregate Buildings Act

Incheon District Court 2017Na51436 Claim for Cancellation of Mortgage, etc.

EOO and 12

Korea

8.07.05

2018.30

1. The part against the defendant in the judgment of the first instance against the defendant shall be revoked.

With respect to the Defendant’s size of 77-41 large scale of 646 square meters in Bupyeong-gu, Incheon:

A. The registration of seizure completed on May 17, 1993 by the Incheon District Court North Incheon District Court North Incheon District Court Law No. 60711;

B. The registration of establishment of a mortgage in the place of registration completed by Law No. 86643 of July 9, 1993;

Each cancellation registration procedure shall be implemented.

2. The defendant's incidental appeal is dismissed.

3. The defendant is responsible for total costs of litigation between the plaintiffs and the defendant.

1. Purport of claim

The defendant shall implement the procedure for cancellation registration of seizure registration completed on July 9, 1999 by the receipt of No. 95036 on the land indicated in the order to the plaintiffs.

2. Purport of appeal

The same shall apply to the order.

3. Purport of incidental appeal;

The part against the defendant in the judgment of the first instance is revoked, and the plaintiffs' claim against the defendant corresponding to that part is dismissed.

1. Facts of recognition;

A. On July 2, 1992, the registration of the transfer of ownership in the name of land A has been completed with respect to the O-O-O large of 646 square meters (hereinafter “instant land”).

B. A. On October 28, 1992, a multi-household of the size of 1st underground and 3rd ground on the land of this case.

On November 23, 1992, it applied for a building permit to newly build and sell 14 households, 14 households (hereinafter referred to as the "sectioned building of this case"), and obtained permission on November 23, 1992, the above construction began around December 3, 1992, and advertisements by household were made around that time, and on December 11, 1992, "multi-household house, 14 households, 14 underground floors, and 3 floors above ground" were stated in the outline of the building that applied for interim inspection on December 11, 1992.

C. On May 4, 1993, the sales contract on No. 102 of the partitioned building of this case was made up and around May 4, 1993

On October 19, 1993, literatureO completed a move-in report of 102 out of the partitioned buildings of this case.

D. The instant partitioned building was completed around that time, but it continued to have not been approved for use due to a partial non-construction and violation of the Building Act.

E. On the other hand, the registration of seizure in the name of the defendant was completed as of May 17, 1993 (hereinafter "registration of seizure 1"), the registration of seizure in the name of the defendant was completed as of July 9, 1993 (hereinafter "registration of seizure 2.6 billion won") and the registration of seizure in the name of the defendant as of July 9, 1999 (hereinafter "registration of seizure 2").

F. On September 18, 2009, each registration of ownership preservation was completed for each of 14 households with respect to the partitioned building of this case (the site ownership is the share of 1/14 out of each of the land of this case) and the status of ownership possession by each household at the time of the closing of argument of this case is as follows.

1) On September 30, 2009, Plaintiff 204, Plaintiff EO 101, Plaintiff KimO 302, Plaintiff 302

No. 301, Plaintiff 201, Plaintiff 102, Plaintiff 103

2) Plaintiff KimO 203 on April 22, 2010

3) On December 8, 2010, Plaintiff HaO, Plaintiff BaO 202 (Each 1/2 equity)

4) February 28, 2012 Plaintiff HamO B02

5) October 23, 2015 Plaintiff EO 304

6) January 29, 2016 Plaintiff 104

[Based on recognition] Gap evidence Nos. 1 through 5, 8 through 12, 14, 15, 17, 18 (including each number), Eul evidence Nos. 1 and images, Eul's witness testimony and video, part of the testimony and video of the first instance court, and the purport of the whole pleadings

2. Determination on the cause of the claim

(a) Formation of sectional ownership and creation of right to use site;

1) Relevant legal principles

In order to establish sectional ownership of one building, there is only one building in an objective and physical aspect, and there is a separate act to divide the physically partitioned part of one building into the objects of sectional ownership (see, e.g., Supreme Court Decision 98Da35020, Jul. 27, 1999).

Here, the act of partitioning is a kind of legal act, without changing the physical form and quality of a building, intended to divide a specific part of a building into an object of separate ownership under the legal concept, and is recognized if the disposal authority’s intention is objectively indicated externally. Therefore, even before the physical completion of a sectioned building, if objectively indicated the intention to divide the building that will be newly constructed in the future into a sectioned building through a building permit application or sales contract, etc., even before the physical completion of the partitioned building, the existence of the act of partitioning can be recognized. If the first building and a sectioned building corresponding to the act of partitioning are completed objectively and physically, the building still is registered in the aggregate building ledger or a sectioned building, and is not registered in the register, at the time of partitioned ownership is established (see, e.g., Supreme Court en banc Decision 2010Da71578, Jan. 17,

2) Whether there was a separate act

On October 28, 1992, DoA, the owner, is 14 households of multi-household houses with the use of the partitioned building of this case.

On November 23, 1992, a building permit was issued on November 23, 1992, and around December 3, 1992, a sales advertisement was made for each household, and around December 11, 1992, a multi-household house 14 households indicating the outline of each building even in the application for interim inspection on December 11, 1992 is as seen above. Therefore, at the latest around December 192, it is determined that there was the expression of intent of the owner who intends to make the instant partitioned building newly built as the object of sectional ownership, namely, the act of distinction.

(iii) The time each part of sectional ownership satisfies the requirements for independence in structure and use.

in order to be called an independent building as a building; and

The main wall is exempted (Supreme Court Decision 2002Da21592, 21608 delivered on May 30, 2003, Supreme Court Decision 2002Da21592, 21608).

January 16, 2001 (see, e.g., Supreme Court Decision 2000Da51872, Jan. 16, 2001).

We examine this case in light of the above legal principles. According to Gap evidence Nos. 5, 10, and 13, each video of Gap evidence Nos. 12,20, some testimony of Professor Professor Professor, and appraiser Lee O's appraisal results, it is recognized that the structural frame of the building of this case has already been completed up to four floors around December 9, 192, half of the floor area of the building of this case has already been completed up to four floors, concrete building was completed up to the fourth floor, the rest of the building of this case has been completed up to the third floor, and around April 193, the interior construction of the building of this case, such as the installation of stairs and the installation of toilets and kitchen households, etc.

Therefore, at the latest around April 193, 1993, it is reasonable to view that each part of the partitioned ownership of the instant building consists of the structural and use of the structural sections from underground floors to the fourth floor, columns, main walls, and ceiling of the instant divided building, and each part of the instant divided building satisfies the requirements for the independence in structural structure and use.

4) Occurrence of a right to use the site

In the end of April 1993, which satisfies all the requirements for independence in structure and use of the division act and each of the sectional sections of this case, even if the division division of this case is not registered in the register as a sectioned building, it is determined that the sectional ownership was established.

Furthermore, it is determined that the right to use the instant land was created on April 1993, when sectional ownership was formed, on the ground that the land owned the instant land at around that time and was the owner of the instant sectional building newly constructed on that ground.

(b) Effect of a disposal act contrary to the prohibition of separate disposal of section for exclusive use and right to use site;

1) Relevant legal principles

Article 20 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Aggregate Buildings Act") provides that a sectional owner's right to use a site shall follow the disposition of his/her exclusive ownership, and that a sectional owner shall not dispose of his/her right to use a site separately from his/her exclusive ownership unless otherwise prescribed by the regulations, and that the prohibition of separate disposal shall not oppose a third party who has acquired a real right in good faith without registering the purport thereof. The purport of the above provision is to prevent the separation of exclusive ownership of an aggregate building and the right to use a site from the creation of sectional ownership without a right to use a site by preventing the occurrence of sectional ownership without a right to use the site from being separated. Therefore, the act of disposal of a site contrary to the unity of exclusive ownership and the right to use a site has no effect (see, e.g., Supreme Court en banc Decision 98Da45652, Nov. 16,

2) Determination

At the latest around April 193, 1993, the sectional ownership of the partitioned building of this case was formed and the right to use the site was established. In addition, there is no evidence to acknowledge the special circumstances, such as the existence of regulations that allow a separate disposal of the right to use the site against the section for exclusive use. Therefore, the first attachment registration, first collateral mortgage registration, and second attachment registration, all of which are completed with respect to the land of this case after May 1993, shall be cancelled in violation of Article 20 of the Aggregate Building Act.

C. Sub-committee

Therefore, the defendant shall register the first attachment, the first collateral security, and the second attachment registration to the plaintiffs.

shall have the obligation to perform the registration procedures for cancellation.

3. Judgment on the defendant's defense, etc.

A. As to the assertion that the plaintiffs are not sectional owners of the partitioned building of this case

1) Summary of the defendant's assertion

The defendant asserts to the purport that, in order to guarantee the settlement of the purchase price, the part of exclusive ownership and the right to use the site of the instant building cannot be seen as the original acquisition of the instant building, since the land was only established in the name of the owner of the instant partitioned building in order to secure the settlement of the purchase price, and it cannot be seen as the original acquisition of the instant building, and therefore, the ownership of the instant land cannot be deemed as the right (site ownership) that the sectional owner owns on the site of the relevant building to own the exclusive ownership

2) Determination

However, considering the above evidence, Gap evidence No. 23, and the following facts recognized by the purport of the whole pleadings, and the circumstances revealed therefrom, it is determined that Gua acquired the partitioned building of this case as the owner of the partitioned building of this case. The defendant's assertion on this part cannot be accepted.

① The 11 owners of the partitioned building of this case, "OO, etc., are o's owners, and they have been sold by, or have been purchased or succeeded to from, the buyers of the partitioned building of this case.Although owners of the partitioned building of this case are o's owners, they were sold or purchased or succeeded to the partitioned building of this case from, such buyers who are delegated with the power to sell the building by o's o's o's o's o's o's o's o's o's o's o's o's o's o's o's o's o's o's o's o's 1's o's o's o's o's o's o's o's o's o's o's o's o's 2's 1's 201's o's o's 21's o'the above 21'.

② The prosecution instituted a public prosecution on November 17, 2010 on the premise that the Do governor is the owner of the building (this Court 2010dan5007). Under the premise that the Do governor is the owner of the building, the court rendered a judgment not guilty on the ground that the Do governor granted Do governor the right to sell the building of this case to Do governor under the premise that the Do governor was the owner of the building, and thus, it cannot be deemed that the Do governor has a duty to complete the registration of ownership transfer to the victims who received the right to sell the building under the name of payment in kind by Do governor. The above judgment became final and conclusive on May 10, 2012 through the appellate court (No. 2011No3610) and the final appeal (No. 2012Do890).

3. The final and conclusive judgments referred to in (1) and (2) are related to the same facts as this case.

The facts recognized in the case are significant judgment data, unless there are special circumstances.

④ The Defendant asserts to the purport that, in the land rent claim lawsuit (this Court Decision 2014No49189, this Court Decision 2015Na1151, this Court Decision 2016Da1724, hereinafter referred to as the "related lawsuit") brought against the sectional owners of an aggregate building on the ground that the land was purchased in the public sale process, Kim Young-gu, Busan, Seo-gu, Busan (hereinafter referred to as "Adjoining land") which was owned by the DistrictCC (AAA and Nam-dong), the court held that, in order to secure the settlement of the purchase price, the building owner of the adjoining land purchased from the land was temporarily located in the name of the owner of the building in order to secure the purchase price, it is difficult to view that the building owner of the adjoining aggregate building was the sectionally constructed building of this case, and that the building owner of this case was also the sectionally constructed building of this case.

However, the following circumstances revealed by the aforementioned evidence, Eul's evidence No. 2-1 to 3 and the purport of the entire arguments are as follows: the judgment of the above related lawsuit is not the land of this case, but the neighboring land of this case; the fact-finding and the judgment of the court below are not the same in this case because the land of this case and the land of this case are the land of this case; the building permit was separately obtained in relation to the construction of each ground aggregate building; the sectional owners completed the registration of preservation of ownership excluding the adjoining land in this case, but it is not possible to conclude that the owner of each building of this case is identical because the neighboring land and the building of this case are using the same name (Save). In full view of the above facts, it is difficult to see that the judgment of the related lawsuit is directly related to this case or that the facts are identical.

⑤ According to the evidence No. 3-1 to No. 3-3, in the course of the investigation into the charge of breach of trust of Does, Does stated to the effect that Does built the instant sectioned building by bearing the construction cost by Doeso, Doeso stated to the effect that Doeso and Doeso made Doesa be concurrently a construction executor and a construction executor, and that Doeso-nam, who performed the sales business in accordance with the direction of Doeso's o's o's o's o's o's o's o's o's o's o's o's o's o's o's o's -

However, according to the above evidence, it is also recognized that the Do governor has consistently stated to the effect that Do governor has paid the Do governor a full payment to the Do governor. The right to sell the Do governor has the right to sell the Do governor, and in light of this, the overall purport of the Do governor’s statement is that Do governor has paid the Do governor a full payment to the Do governor, and the construction cost should be paid and settled later.

The BaO prepared a contract for sale of part of the partitioned building of this case to the construction business operator of the instant partitioned building in payment in kind, but later the contract for sale in lots was concluded by BaO.

Since the problem of authority is concerned, there is a motive to make a statement to the effect that "a person has the authority to sell in lots as a real owner in order to be exempted from criminal liability." Gangnam is merely a working person who performs the sales business in accordance with the direction of hand, and it is difficult to see that he/she is accurately aware of the ownership relationship arising from the construction of the partitioned building of this case, and there is a motive to make a statement favorable to his/her grandchildren. In light of these circumstances, it is difficult to believe that the above statement made by o's or o'

B. As to the assertion that the registration of seizure Nos. 1 and 2 by the defendant is not subject to separate disposition

The defendant asserts to the effect that the registration of seizure Nos. 1 and 2 is a change in real rights that are not by legal action and does not constitute a disposition prohibited by Article 20(2) of the Aggregate Buildings Act, and that even if the registration of seizure Nos. 1 and 2 was completed after the establishment of divided ownership of this case, it cannot be deemed as contrary to the principle of prohibition of separate disposition under Article 20(2)

The purport of Article 20(2) of the Aggregate Buildings Act is to ensure stability in legal relations as to aggregate buildings and reasonable discipline by suppressing the separation of section for exclusive use of an aggregate building and right to use site to the maximum extent and preventing the occurrence of sectional ownership without a right to use site (see, e.g., Supreme Court Decision 2007Da45777, Sept. 11, 2008). However, the State’s seizure registration is subject to prohibition of separate disposition under Article 20(2) of the Aggregate Buildings Act, as it may result in the separate disposition of section for exclusive use and its site due to a disposition by the State’s seizure. This part of the defendant’s assertion is unacceptable.

C. As to the defense that the defendant is protected as a bona fide third person

The defendant asserts that the prohibition of separate disposition cannot set up against the third party who acquired the real right in good faith without registering its purport (Article 20(3) of the Aggregate Buildings Act), and that the defendant did not know that the partitioned building in this case is being newly constructed at the time of the completion of the seizure registration or the first right to collateral security registration (Article 20(3) of the Aggregate Buildings Act).

First of all, it is about the registration of attachment Nos. 1 and 2. The third party of the good faith protected under Article 20, Paragraph 3 of the Aggregate Buildings Act is required to acquire the real right as the good faith, and since the completion of the seizure registration alone cannot be said to have acquired the real right, this part of the defendant's assertion is not necessary to examine the remaining issues.

Next, regarding the registration of the establishment of the first place collective security right. The completion of the establishment of the first place collective security right is to be included in the "acquisition of the real right". However, in light of the above facts, around December 9, 1992, prior to the establishment of the first place collective security right, the construction of the fourth floor was completed, and the part corresponding to half of the fourth floor and the completion of concrete removal construction on the third floor of the third floor, and the third floor of the remaining part, it is reasonable to deem that the defendant knew that the land of this case was the land of this case as at the time of the establishment of the first place collective security right, and there is no evidence to acknowledge the good faith of the defendant.

Ultimately, the defendant's assertion on this part cannot be accepted.

D. Sub-committee

After all, the defendant's defense cannot be accepted, and the defendant seizes No. 1 to the plaintiffs.

There is a duty to implement registration procedures for cancellation with respect to registration of attachment No. 1, 1, and 2.

3. Conclusion

Therefore, the plaintiffs' claim against the defendant in this case should be accepted on the grounds of its reasoning. Since the part against the plaintiffs against the defendant in the judgment of the court of first instance against the defendant is unfair on the grounds of its conclusion, the plaintiffs' appeal shall be accepted and the defendant shall be revoked and the defendant shall be ordered to execute the procedure of registration of seizure 1 and registration of cancellation of the first right to collateral security, and the defendant's incidental appeal shall be dismissed