(영문) 서울중앙지방법원 2015.12.11 2014가단181259

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(영문) 서울중앙지방법원 2015.12.11 2014가단181259

부당이득금반환

Text

1. The defendant shall be the plaintiff.

(a) KRW 7,428,741 and interest thereon shall be 15% per annum from November 3, 2015 to the date of complete payment.

Reasons

1. Basic facts

A. On June 8, 1979, the ownership transfer registration was completed in the name of 3/6, E, F, and the name of the defendant with respect to the land of 23 square meters in Jung-gu Seoul Special Metropolitan City (hereinafter “instant land”). The shares of E and F were transferred to the defendant on July 15, 2003.

B. The Plaintiff purchased 3/6 shares out of the instant land from D on January 23, 2009 at KRW 35 million, and completed the registration of ownership transfer in the name of the Plaintiff on January 28, 2009 with respect to 3/6 shares out of the instant land.

C. From July 15, 2003, the Defendant constructed and resided on the instant land without permission.

[Ground of recognition] Facts without dispute, Gap evidence No. 1, Gap evidence No. 3, purport of whole pleadings

2. Determination

A. 1) Determination as to the cause of the claim can be made on the basis of the share ratio of each co-owner of the land where the obligation to return unjust enrichment occurred. However, inasmuch as a majority of shares of co-owners have not been agreed on the specific method of use and profit-making, one of the co-owners is unable to exclusively occupy and use the entire land. Thus, if a part of the co-owners exclusively occupy and use the entire land, the share among the other co-owners but the use and profit-making has to be deemed as making unjust enrichment corresponding to their share ratio (see, e.g., Supreme Court Decision 2000Da17803, Oct. 11, 202). Meanwhile, since a building cannot exist regardless of its site, the land on which the site of the building was located shall be deemed as the owner of the building. In such cases, even if the owner of the building does not actually occupy the building or the site of the building, it shall be deemed that he/she owns the land for the purpose of owning it (see, e.g., Supreme Court Decision 2003Da535.

참조판례

-대법원 2002. 10. 11. 선고 2000다17803 판결

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