A. Case of dismissal of appeal and dismissal of judgment

(b) An opposing power of the right of lease against a person who has not registered the lease of a site or a person who has not registered the ground building, for a successor to the site;

A. The plaintiff's claim of the principal lawsuit is justified and the original judgment with the same conclusion is justified. Thus, this appeal is dismissed. However, according to the result of the appraisal by the non-party 4 of the original judgment, the indication of the building suspended by the defendants is the same as that of the attached Table, so the indication shall be followed.

B. The Defendant, who leased the site from the former owner, cannot oppose the Plaintiff, who acquired the site, unless he/she registered the lease of the site or registered the above ground building.

Article 197 of the Civil Procedure Act

Supreme Court Decision 67Da982 delivered on October 31, 1967 (Supreme Court Decision 2122DaDa1552 delivered on October 13, 1967 (Supreme Court Decision 200Da8920 delivered on October 13, 1967, Decision 67Ma552 delivered on October 13, 1967 (Supreme Court Decision 7690 delivered on October 19, 197, Decision 197(19)892 of the Civil Procedure Act)

Plaintiff

Defendant 1 and one other

Busan District Court (65No4254)

This appeal is dismissed.

단 원판결중 별지도면 표시중 (가)를 ㈁으로 (다)를 ㈀으로 (다)표시 평수 5평 5홉을 1평 5홉으로, (라)를 ㈂으로 (마)를 ㈃으로 정정한다.

Expenses for appeal shall be borne by the defendant, etc.

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff through the first and second trials.

피고 1은 원고에게 부산시 중구 중앙동 2가 (지번 생략) 대 36평 7홉중 별지도면표시 ㈁, ㈀부분에 건립된 목조도단즙 평가건 점포겸 주택 1동 건평 10평 3홉 동(㉢)부분에 건립된 세멘트부록조 도단즙 평가건 주택1동 건평 5평 6홉 2작 및 동 ㈃부분에 건립된 목조천막포즙 평가건 점포 겸 주택 1동 건평 7평 8홉 7작을 수거하고 위 각 부분 대지를 명도하라.

피고 2는 원고에게 위 (㉣)부분 건물에서 퇴거하고 그 부분 대지를 명도하라.

Litigation costs shall be borne by the defendant, etc.

1. 원고와 피고 1 간의 청구에 관하여 성립에 다툼이 없는 갑 제1호증(등기필증), 을 제3호증의 1,2(등기필증 가옥대장)의 각 기재내용에 당심증인 소외 1, 2 원심 및 당심증인 소외 3의 일부증언(뒤에서 믿지 않는 부분 제외)과 원심의 검증결과 및 감정인 이희진의 감정결과에 변론의 전취지를 종합하면 원고는 1959.1.4 소외 2로부터 동인 소유인 부산 중구 중앙동 2가 (지번 생략) 대 36평 7홉(이하 이건 대지라 약칭한다)을 매수하여 1965.11.23. 그 등기를 넘긴 원고 소유인 사실 피고 1은 이건 대지상에 별지도면 ㈁,㈀,㈂,㈃부분 건물을 설치하여 소유하고 동 대지를 점유하고 있는 사실을 인정할 수 있고 을호 각증으로서는 위 인정을 뒤집을 증거로서 부족하다.

Even if Defendant 1’s building was established on the same site as the Plaintiff’s assertion, Defendant 1’s non-party 2’s non-party 1 purchased the above building site on August 22, 1956, and agreed to renew the lease period by setting the lease period of KRW 2,400 per month from the former owner at the time, and raising the lease period of KRW 1,00 per month after the expiration of the lease period, and upon the consent of the above non-party 1’s building on this site, the construction of the building as alleged by the above non-party 1 and the registration of the building was possible to oppose the Plaintiff as the owner of this site pursuant to Article 622 of the Civil Act. According to the reasoning of the judgment below, the non-party 1 and 2 (Receipt of Lease Contract) and the non-party 3’s testimony on the above building site cannot be acknowledged as being the owner of the above building site by the non-party 1 and the non-party 2’s assertion that the above content of the building site was not owned by the plaintiff 1 and the above non-party 2.

Although the defendant is not a domestic case, since it is clear that the plaintiff was dismissed by the plaintiff, and that the non-party 2, the head of the plaintiff's factory, was approved by the transfer contract between the defendant et al. and the non-party 2 by receiving the transfer fee from the defendant 1 to May 1965, the plaintiff's defense that the non-party 2 and the non-party 3 succeeded to the above transfer contract is not evidence to approve the above transfer contract, and the testimony of the non-party 10 and No. 11 cannot be admitted as evidence, and there is no other evidence to acknowledge this. Thus, the defendant's defense is without merit.

Defendant 1, an attorney of the defendant et al., purchased a building site on the ground above 1958 on which the plaintiff purchased a building site on which another person's building was constructed, and recommended that the plaintiff sell the building site at a reasonable price for which the defendant et al. received rent, but the plaintiff refused to comply with the request of the defendant for removal of the building without any special purpose, caused substantial damage to the defendant, and only the defendant should he pursue self-interest. This is so-called abuse of rights, and it is hard to say that the above contents of the No. 1, No. 2, which can be recognized as the authenticity by the purport of the preceding oral argument, are the contents of No. 1, No. 1, No. 2, and that the above building site was constructed on the ground above 3th of August 15, 1958 at the center of Busan City, and the above building site was constructed on the ground after June 25, 200, which was owned by the plaintiff for the purpose of removal of the building site above 1, without any new ownership.

Defendant 1’s legal representative, upon obtaining the consent of Nonparty 2 from the former owner of the building site, constructed a building in which the construction cost is KRW 530,00 on the above ground. Thus, the plaintiff cannot respond to the plaintiff’s claim unless he purchases the building owned by the defendant on the building site or pays the necessary and beneficial expenses under Article 626 of the Civil Act pursuant to Article 643 of the same Act. According to the appraiser Nonparty 4’s appraisal result, the construction cost at the time of the defendant’s assertion is 170,758 (the construction cost as at April 12, 1966, which was 391,051 as at the time of the closing of argument in this case). However, it can be sufficiently accepted in light of the above fact that the testimony of the non-party 1 and the non-party 2 witness on the building site cannot be used as evidence to prove that the building site was first sold to the non-party 3 witness on the building site, as seen earlier.

피고 2에 대한 청구에 관하여 피고 2가 피고 1 소유인 별지도면표시 건물중 ㈃부분을 점거하고 해대지를 점유하고 있는 사실은 당사자간에 다툼이 없는바 피고 2는 이건 대지상의 건물은 피고 1이 전소유자 소외 2로부터 임차하여 설치한 동 피고 소유건물로 피고 2는 이건 건물을 피고 1로부터 임차하여 점거하고 해당 대지를 점유하고 있음으로 원고 청구에 응할 수 없다고 항쟁함으로 살피건대, 이건 대지가 원고 소유로 됨으로써 피고 1이 이건 대지를 점유함에 있어 정당한 권원이 없음은 앞에서 인정한 바이므로 이는 건물 임대인인 피고 1에게 대항할 수 있는 사유는 될지언정 이건 대지 취득자인 원고에게 대항할 수 있는 사유는 되지 못함으로 이 항변은 이유 없다.

Thus, Defendant 1, who did not otherwise prove that he had a legitimate title to possess the above site, is obligated to remove the building in the order form, leave the site from the building in the order form, and leave the site in question and order the owner of the above site. Thus, the plaintiff's claim of the principal lawsuit is justified and accepted it. Accordingly, this appeal is dismissed in accordance with Article 384 of the Civil Procedure Act because the judgment of the court below is justified, and the judgment of the court below is dismissed in accordance with Article 384 of the Civil Procedure Act (the indication of the building occupied by the defendants according to the result of appraisal by Nonparty 4 is the same as the indication in the annexed list, so it is not necessary to declare provisional execution as to the cost of lawsuit, and it is so decided as per Disposition by Articles 95, 93, and 89 of the Civil Procedure Act.

Judges Kim Young-ro (Presiding Judge) Park Jae-ho