Plaintiff

A20,000,000

Defendant (Law Firm East, Attorneys Kim -sik-sik, Counsel for the defendant-appellant)

September 22, 2016

Suwon District Court Decision 2014Da508715 Decided October 15, 2015

1.The judgment of the first instance shall be modified as follows:

A. The defendant delivered to the plaintiff succeeding intervenor the part of the attached Form 1, 2, 3, 4, and 1 which are linked in sequence to each of the items in the attached Form 1, 2, 3, 4, and 1 among the real estate 4 floors listed in the attached Table, to the plaintiff succeeding intervenor, each of which is 82.96 square meters in the part of the attached Form and 5, 6, 7, 8, and 5, each of which is successively connected to each point in

B. The plaintiff succeeding intervenor's remaining claims are dismissed.

2. 1/2 of the total litigation costs is assessed against the Intervenor succeeding to the Plaintiff, and the remainder is assessed against the Defendant, respectively.

3. The extradition portion under paragraph (1) may be provisionally executed.

1. Purport of claim

A. The Plaintiff: the Defendant delivers to the Plaintiff each amount of money calculated at the rate of KRW 1,50,000 per month from January 1, 2013 to the completion date of delivery of the above restaurant and the amount of money calculated at the rate of KRW 1,50,00 per month from January 1, 2013 to the day of delivery of the above restaurant, each of which is linked with each point of KRW 1,2,3,4, and 1 in the attached Form No. 82.96 square meters in the attached Form No. 5,6,7,8, and 5 in the order of priority among the real estate 4 stories listed in the attached Table No. 1,2,3,4, and 1 in the attached Form No. 82.

B. The Plaintiff’s succeeding intervenor: the Defendant delivers to the Plaintiff’s succeeding intervenor the amount calculated by 15% per annum from the day following the day of delivery of a copy of the supplementary application for participation in the instant succession to the day of complete payment of 89,50,000 won, and 15% per annum from the day of delivery of a copy of the supplementary application for participation in the instant succession to the Plaintiff’s succeeding intervenor (the Plaintiff’s succeeding intervenor succeeded to the Plaintiff’s succeeding intervenor at the trial court).

2. Purport of appeal

A. Plaintiff: The part of the judgment of the first instance court against Plaintiff is revoked. The Defendant shall pay to the Plaintiff the amount calculated by the ratio of KRW 1,500,000 per month from January 1, 2013 to the completion date of delivery of the restaurant as stated in the purport of the claim, and the amount calculated by the ratio of KRW 1,00,000 per month from January 1, 2013 to the completion date of delivery of the store as stated in the purport of the claim.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revoked part is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or each entry in Gap evidence Nos. 1, 4, 5, 6, 9, 10, 15, and 16 (including each number), with a comprehensive view to the whole purport of the pleadings.

A. Among the main complex buildings with the 5th underground floor and the 19th floor above ground level, a commercial building with the 19th floor above ground level (hereinafter “instant commercial building”) was installed in line with the sectional ownership of the buyers at the time of opening August 2001, the floor boundary marks, partitions or walls, building number signs, etc.

B. During the period from August 15, 2002 to September 15, 2002, Nonparty 1, who acquired the right to manage and lease the instant commercial building, removed all internal facilities, such as partitions, ceiling, floor, and toilet, etc. of the instant commercial building without the consent of all sectional owners of the instant commercial building, and set up a private house on the fourth and fifth floor of the instant commercial building (hereinafter “instant private house”).

C. After that, during the period from January 2005 to July 2005, Nonparty 5, who was delegated by Nonparty 1 with the authority to manage the facilities of the instant commercial building and to vicariously lease the instant commercial building, prepared and delivered a written consent from some sectional owners of the 4 and 5th floor of the instant commercial building, including Nonparty 2, to delegate all their authority to operate the shops under their sectional ownership, and established the management body of 004 and 5th floor, and the management body of 004 and 5th floor was leased to Nonparty 2 of the instant commercial building on December 22, 2005.

D. On August 13, 2008, the Defendant entered into a lease agreement with Nonparty 5 to lease the portion of 44.1 square meter (hereinafter “instant store”) in the attached Form No. 5, 6, 7, 8, and 5, which was part of the instant house or any part of the instant house, in sequence, with the Defendant’s order. ② On April 29, 2010, the Defendant succeeded to the status of Nonparty 5 as the lessor of the instant lease agreement, and Nonparty 5 succeeded to the status of the said lease agreement: (a) the lease deposit was KRW 50 million; (b) the rent was KRW 1,00,000; and (c) the lease agreement was concluded with the Defendant from April 29, 2010 to April 21, 2018.

E. Nonparty 6 entered into a lease agreement with Nonparty 5 on the right to lease the instant restaurant including 1,2,3,4, and 1 among the four floors of the instant commercial building, which Nonparty 6 connects Nonparty 5 with each point of 1,2,3,4, and 82.96m2 (hereinafter “instant restaurant”). At that place, Nonparty 6 operated the restaurant in the name of “△△△△△ cafeteria”. On July 23, 2012, Nonparty 4 and Nonparty 4 entered into a lease agreement with the Defendant on the instant restaurant (lease deposit KRW 13,00,500,000, monthly rent KRW 1,50,000, and from July 23, 2012 to July 22, 2014) with the Defendant to transfer or acquire the right to the instant restaurant, including the right to use the instant restaurant, to KRW 30,000,000,000.

F. On April 27, 2008, a considerable number of persons registered as owners in the register of each of the partitioned buildings of the instant shopping mall (a dispute between the Plaintiff and the Defendant regarding the ratio, but not falling under the issues of the instant case as seen below, and thus, it does not be determined) established an organization under the name of the △△ after holding a general meeting on April 27, 2008, and around that time, established the articles of association and management rules of the instant management body.

G. On January 1, 2013, the Plaintiff entered into a lease agreement (hereinafter “instant lease agreement”) with Nonparty 7, who was registered as the owner in the register of Nonparty 4 (No. 3 omitted), among the instant management body and the instant shopping mall, on which the Plaintiff agreed to lease the instant private letter from January 1, 2013 to 24 months (hereinafter “instant lease agreement”).

F. The Plaintiff, among the instant commercial buildings, was registered as the owner of the register on the basements (No. 4 omitted), (No. 5 omitted), 2 (No. 6 omitted), 3 (No. 8 omitted), 3 (No. 9 omitted), 4 (No. 1 omitted), 2 (No. 2 omitted), and 5 (No. 11 omitted) (hereinafter collectively referred to as “instant stores”), and the Plaintiff’s successor was registered as the owner of the register on August 20, 2015 as to the instant stores while the instant lawsuit was pending, and on October 19, 2015, the Plaintiff’s successor obtained a registration of ownership transfer from the Plaintiff for the instant stores on the grounds of sale and purchase from the Plaintiff on August 20, 2015.

2. Judgment on the Plaintiff’s succeeding intervenor’s assertion

(a)the portion on which extradition is requested;

1. Summary of the plaintiff succeeding intervenor's assertion

The Plaintiff’s succeeding intervenor asserts that each section of exclusive ownership lost its structural independence and thus the sectional ownership right under the Act on the Ownership and Management of Aggregate Buildings cannot be established. The registered titleholders of each section of exclusive ownership of the commercial building of this case were co-owners of the commercial building of this case. The Plaintiff was the registered titleholders of the store of this case, and the Plaintiff’s succeeding intervenor, who received a registration of ownership transfer for the store of this case from the Plaintiff, also was the co-owners of the commercial building of this case. Thus, the Defendant, as part of the commercial building of this case, is obligated to deliver the instant restaurant and store to the Plaintiff’s succeeding intervenor (the Plaintiff was the first tenant of the instant commercial building before leaving the lawsuit of this case, and the Plaintiff asserted that delivery of the instant restaurant of this case and shop of this case was sought by the Plaintiff by subrogation of the right to request delivery based on the right of commercial management of the management body of this case, and that the Plaintiff’s neighboring co-owners were not subject to the Plaintiff’s request for the aforementioned delivery as part of the preservation contract of the above co-owners, and the Plaintiff’s assertion.

2) Determination

A) If the building registered as a sectioned at the time of the enforcement of the Act on the Ownership and Management of Aggregate Buildings loses its structural independence and it cannot be established as sectional ownership of the building, it is only the co-owners of one building to which the building belongs (see, e.g., Article 5 of the Addenda to the Act on the Ownership and Management of Aggregate Buildings, enacted by Act No. 3725, Apr. 10, 1984). [see, e.g., Supreme Court Decision 2012Da4985, Mar. 28, 2013] The commercial building of this case was installed in line with the sectional ownership of several buyers at the time of opening August 201, but Nonparty 1 was not in line with the provisions of Article 1 of the same Act, and thus, it cannot be established as the sectional ownership of the commercial building of this case from Aug. 15, 2002 to Sept. 15, 202.

B) On this ground, the defendant asserts that ① since the part owned by the defendant is extremely part of the commercial building of this case, the defendant does not constitute the person who occupies and uses the common property of this case. However, as acknowledged earlier, the defendant occupies and uses the restaurant of this case and the store of this case, which does not constitute exclusive possession and use due to some of the commercial buildings of this case, are without merit in itself, and ② since the exercise of the right to preserve the commercial building of this case does not conflict with the interests of other co-owners, the plaintiff's successor cannot request the defendant to deliver the restaurant of this case and the store of this case to the defendant as the act of preserving the common property of this case, the plaintiff's successor cannot make a request for delivery of the above 5 commercial building of this case to the defendant, but since part of the co-owners' common property is allowed to be exclusively owned and used by the third party (Article 265 of the Civil Code), it is not sufficient to recognize that the defendant's possession and use of the above 2 commercial building of this case are different from the plaintiff's co-owner's share of this case.

B. Part of claim for payment of money

1. Summary of the plaintiff succeeding intervenor's assertion

The Plaintiff’s succeeding intervenor did not deliver the instant restaurant and store to the Plaintiff who properly leased the instant private house from the instant management body, and caused the Plaintiff to incur damages equivalent to the rent of the instant restaurant and store. As such, the Defendant is obligated to compensate the Plaintiff for the rent of the instant restaurant and store from January 1, 2013 to December 10, 2015, which is equivalent to the rent of the instant restaurant and store operated by the Plaintiff from January 1, 2013 to December 10, 2015, and damages for delay. The Plaintiff’s succeeding intervenor received from the Plaintiff the said damages claim against the Defendant on June 24, 2016, since the Defendant was obligated to pay the Plaintiff’s damages amounting to the Plaintiff’s succeeding Intervenor.

2) Determination

In order for a false third party’s act to constitute a tort as it infringes on a claim, it is recognized that the third party committed an unlawful act, such as violating laws and regulations or violating good morals and other social order, even though being aware of the fact that it harms the creditor, thereby infringing on the creditor’s interest. In such a case, whether such an act is unlawful or not shall be determined specifically and individually by taking into account the content of the claim infringed, the mode of the infringement, the intent of the infringer or the existence of the year, etc., but the decision should be made by comprehensively taking into account the need to guarantee the freedom of trade, public interest including economic and social policy factors, and the balance of interest between the parties (see Supreme Court Decision 2008Da82582, Oct. 29, 2009

Based on the above legal principles, in full view of the facts acknowledged above, the defendant did not start possession of the restaurant and store of this case without any contractual relation without permission, but entered into a lease agreement recognized in the above paragraph 1-D with the non-party 2, etc. who leased the private house of this case, and paid lease deposit money to the non-party 2, etc., and received the store of this case. The non-party 5 who succeeded to the right to lease of this case from the non-party 6 who leased the restaurant of this case to the non-party 6, who received the right to lease of this case, paid the lease money and paid the price for the transfer, and received it. Since the non-party 5 and the non-party 2 did not have the right to lease the restaurant of this case and store of this case, the defendant did not have any evidence to deem that the non-party 5 and the non-party 2 had occupied the restaurant of this case with any unlawful means, and even though the lease period under the lease agreement, etc. asserted by the defendant, it cannot be viewed that the plaintiff's succession or the right to lease of this case was unlawful.

3. Conclusion

Therefore, the plaintiff succeeding intervenor's claim of this case is justified within the above scope of recognition, and the remaining claims shall be dismissed as it is without merit, and the judgment of the court of first instance shall be modified as above due to the plaintiff's successor's participation in the court of first instance. It is so decided as per Disposition.

(attached Form omitted)

Judges Hong-chul (Presiding Judge)

1) The evidence No. 1-3 (Service Management Contract) stated Nonparty 2 in the lessor’s column. However, the Plaintiff asserted that the lessor, who entered into a lease contract between the Defendant and the Defendant on the above date and on the above date, was Nonparty 2, and the Defendant asserted that the lessor, who entered into a lease contract between the Defendant and the Defendant on the above date in the written reply, was Nonparty 3, and Nonparty 2 and Nonparty 3 were in a personal relationship, but no evidence was submitted to confirm it.