Whether there is a benefit in filing a lawsuit to seek implementation of the procedure for change of name of the owner of a building where registration of preservation of ownership was made but all the procedures, such as various reports or applications under the Building Act necessary for legitimate use, have not been completed (affirmative)

Unlike the case where a construction work is completed and a pre-use inspection is approved in the name of a building owner under the Building Act, and the registration of preservation of ownership is completed, in a case where the registration of preservation of ownership is completed without completing all the procedures for various reports, applications, etc. under the Building Act, which could be seen as an independent building, even though the construction itself was completed as possible, up to the lawful use thereof, the original acquisitor of the building may complete the construction in accordance with the permitted contents under the Building Act by changing the name of the building owner in his/her name and implementing all the procedures for various reports, applications, etc. under the Building Act, which remain in his/her name until the lawful use thereof is completed. In such a case, the lawsuit seeking the implementation of the procedures for change of ownership by asserting that the person who

Article 248 of the Civil Procedure Act (Institution of Lawsuit), Article 16 of the Building Act, Article 12(1)3 of the Enforcement Decree of the Building Act, Article 11 of the Enforcement Rule of the Building Act, Article 131 of the Registration of Real Estate Act

Plaintiff

Defendant (Seoul General Law Firm, Attorneys Go Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na103149 decided September 5, 2008

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1, 2, and 3

According to the reasoning of the judgment below, the court below, based on its adopted evidence, filed a lawsuit against the Plaintiff on the land of this case to determine Nonparty 1 and Nonparty 2, etc. on the land of this case as contractor for construction, and entered into the agreement of this case with the Defendant on August 20, 2004 on the condition that the Plaintiff would receive KRW 240 million from the Defendant, and at the same time the Plaintiff would transfer the right to the building of this case to the Defendant on the condition that the Plaintiff would change the name of the owner on the construction permit. At that time, the building of this case was completed up to the 6th above ground and did not complete only the degree of railing with the second floor of the rooftop and the 70% portion of the building, and the Plaintiff did not pay the remainder of the above construction permit of this case to the owner of this case on the ground that it was changed to the name of Nonparty 3 and the owner of the building of this case on September 7, 2004, and the Defendant did not pay the above provisional attachment to the Defendant under the above agreement.

Based on the above facts, the court below held that the building of this case was originally acquired by the plaintiff, who is the owner at the time of the agreement of this case, and that the defendant did not pay the remaining payment date under the agreement of this case until it was due, and that there was no intent to perform the contract of this case in the oral proceedings of the court below, so long as the plaintiff had been lawfully rescinded by the plaintiff's notification of cancellation of agreement of this case, the plaintiff was obligated to perform the procedure for the change of the name of the owner of this case due to the return of KRW 100 million which the plaintiff had already received from the defendant with the contract of this case and the simultaneous performance of the contract of this case. Accordingly, the court below rejected the defendant's assertion that the contract of this case was not effective due to the defendant's assertion that the contract of this case was completed and sold after the completion of the building of this case, or the loan claim of KRW 18 million against the plaintiff 2 or 1,000 won against the plaintiff of this case was extinguished by offsetting it with the payment obligation of this case.

Examining the reasoning of the judgment of the court below in light of the records, the above judgment of the court below is just, and there is no allegation in the grounds of appeal disputing the fact-finding of the court below, which is the fact-finding court, cannot be a legitimate ground of appeal, and the judgment of the court below that each duty to restore to the plaintiff and the defendant, upon the rescission of the agreement of this case, are in simultaneous

The court below did not err in the misapprehension of the rules of evidence or in the misapprehension of legal principle, which affected the conclusion of the judgment.

2. Regarding ground of appeal No. 4

A building permit is a principle that there is no interest in legal action to seek change of name for the purpose of registration of initial ownership in the case of a building, the construction of which is completed and the registration of initial ownership can no longer be made in accordance with the contents of which are already permitted, because it does not affect the substantial legal relationship of the building, rather than the method of public announcement of acquisition, loss, and change of name of the owner because it does not have any influence on the substantial legal relationship of the building (see Supreme Court Decisions 88Da6754, May 9, 1989; 2006Da6029, Dec. 27, 2007; 2006Da6029, etc.). However, in the case of a building which is not completed in accordance with the procedure stipulated in the Building Act, where the name of the owner needs to be changed for legitimate use as well as the registration of initial ownership in accordance with the Registration of Real Estate Act, the interest in legal action to seek change of name of the owner under the Building Act may not remain in the name of the owner.

Among the grounds of appeal, there is an argument disputing the interest in the lawsuit of this case on the ground that the registration of preservation of ownership was made in the name of the defendant on the building of this case after the closing of argument in the court below. However, according to the above legal principles and facts acknowledged by the court below, as long as the procedures prescribed by the relevant Acts and subordinate statutes, such as the application for approval of usage inspection under the building act, are not yet approved, the interest in the lawsuit to seek implementation of the procedure for alteration of the name of the owner in the name of the plaintiff, who is a legitimate right holder with respect to the building of this case, shall be acknowledged. Thus, the above argument is without merit, and the argument that the execution based on the judgment in favor of this case may be practically difficult due to various legal disputes, which are linked to the parties

The judgment of the court below is not erroneous in the misapprehension of legal principles as to the interest of lawsuit, etc. as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)