(영문) 서울서부지방법원 2017.05.17 2016가단27132

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(영문) 서울서부지방법원 2017.05.17 2016가단27132

건물퇴거

Text

1. The Defendants shall withdraw from the building indicated in the attached list.

2. The costs of lawsuit are assessed against the Defendants.

3.Paragraph 1.

Reasons

1. On March 26, 2014, the Plaintiff purchased 63m2 in Seoul Western District Court D real estate auction procedure and paid the sale price and acquired ownership.

The Plaintiff filed a lawsuit (Seoul Western District Court 2016Gadan94555) against F, the owner of an unauthorized building listed in the attached list (hereinafter “instant building”) constructed on the instant land, claiming transfer of the land and removal of the building (Seoul Western District Court 2016Gadan9455). On August 30, 2016, the Plaintiff rendered a judgment that “F shall remove the instant building to the Plaintiff and deliver the instant land to the Plaintiff,” and the said judgment became final and conclusive around that time.

The Defendants currently occupy and use the instant building.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. The assertion and judgment

A. Even in a case where the owner of land is allowed to demand the owner of the building to remove the building and deliver the site on the ground of the Plaintiff’s claim because the building has not been provided with the right to use the land for its existence, if a person other than the owner of the building occupies the building, the landowner may not execute the removal, etc. of the building unless the building is removed.

Therefore, the ownership of land at that time is deemed to be hindered in the smooth realization of the land by the aforementioned possession. As such, the landowner is entitled to file a claim against the possessor of the building for the removal of interference based on his/her own ownership (see Supreme Court Decision 2010Da43801, Aug. 19, 2010). Therefore, the Defendants, the possessor of the building of this case, are obligated to withdraw from the building of this case, the Plaintiff, the owner of the land of this case, barring special circumstances.

B. The Defendants’ assertion is legitimate to have an opposing power under the Housing Lease Protection Act with respect to the instant building.

참조조문

-주택임대차보호법

참조판례

-대법원 2010. 8. 19. 선고 2010다43801 판결

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