(a) The case holding that, where a sales contract for the site is concluded and a buyer approves the use of the site, the agreement for acceptance of the use of the site has become null and void together with the contract, as the main contract is lawfully rescinded;

(b) The case holding that a claim for removal of a building against a third party who constructed a solid building by reliance on the consent to use the site is in violation of the principle of trust and good faith in the case of paragraph (1) above;

A. The case holding that as long as the sales contract which is the main contract is the incidental loan contract is legally rescinded on the premise that the sales contract between the parties continues to exist effectively when concluding the sales contract on the site, the agreement to approve the use of the site, which is an incidental loan contract, is also invalidated concurrently with it, on the premise that the sales contract is an incidental loan contract.

B. The case holding that it is not reasonable in light of the principle of good faith as well as social and economic aspects, even if it is based on ownership of a site, to demand the removal of a solid building owned by a third party and lawfully constructed on the ground that the contract for the construction of a new building is concluded with the purchaser of the site in trust of the consent to use the site and the purchaser of the building was rescinded after the lawful completion of the contract.

A. Articles 548 and 609 of the Civil Act; Article 2(1) of the Civil Act

Plaintiff

Defendant

Seoul High Court Decision 90Na28578, 28585 delivered on January 18, 1991

The part of the lower judgment against the Defendant regarding the principal lawsuit shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

We examine the grounds of appeal.

On the first ground for appeal

1. According to the reasoning of the lower judgment, the lower court determined that the instant building site (Seoul-gu (No. 1 omitted) owned by the Plaintiff, and that the Defendant newly constructed the 1, 2nd floor of the brick and 2nd floor of the instant building, the instant building, on the instant building site, the 1, 87 square meters of the brick and 2nd floor, and 75.60 square meters of the underground room, and completed the registration of preservation of ownership in its name.

2. The plaintiff entered into a sales contract with the non-party 1 (hereinafter the non-party 1) for the land of this case and agreed to use the land of this case. The defendant completed a new construction of the building of this case from the non-party who obtained approval for the use of the land of this case, and the defendant's assertion that the non-party had legitimate title to occupy the building of this case as the site of this case upon the plaintiff's approval for the use of the land of this case. The plaintiff's construction on January 10, 1987, approximately 164 square meters in Dongjak-gu Seoul ( Address 2 omitted), which was owned by the plaintiff, was 213,00,000 won for the non-party 1 and the non-party 2's new construction of the building of this case. The non-party's new construction of the building of this case was 193,000,000 won for the non-party's new construction of the building of this case. The plaintiff's new construction of this case's land of this case's 31.

3. Even if the Defendant newly constructed the instant building on the instant site by the Plaintiff’s consent to use, the Plaintiff’s consent to use the instant site is deemed an incidental loan agreement based on the premise that the instant sales contract remains effective. If the said sales contract is legally rescinded, it is reasonable to view that the agreement to consent to use the site was invalidated. Thus, the lower court’s rejection of the Defendant’s defense is without merit.

On the second ground for appeal

Even if the building of this case constructed by the defendant was inspected upon completion before the plaintiff cancelled the contract, such as the theory of lawsuit, and registered the preservation of the building on September 5 of the same year, and even if the plaintiff supervised and urged the new construction of the building of this case, it cannot be said that the defendant's possession of the building of this case is the possession of the land of this case. It is without merit.

Concerning the third and fourth points

1. The court below rejected the defendant's assertion that the plaintiff's demand for removal of the building of this case violates the principle of trust and good faith and that the construction of the building of this case is based on the plaintiff's approval for use, while the above approval for use is based on the premise that ownership of the building site shall be transferred to the non-party as the above sales contract concluded between the plaintiff and the non-party was implemented. However, as long as the above sales contract was cancelled due to the reasons attributable to the non-party, the plaintiff's claim for removal of the building of this case is against the principle of trust and good faith or it cannot be viewed

2. However, according to Gap evidence No. 3-1, which is the real estate sales contract of this case, the above No. 4 should complete the balance payment of the land, undergo the inspection of completion of the building after the transfer of registration is completed, and transfer the land to the name of the permission holder. The above No. 5 is a special contract with the permission holder at the same time as the contract is entered into, and the documents necessary for the construction permission are provided. Thus, it can be seen that the above special contract was already entered into at the time of the conclusion of the contract for the sale and purchase of the land in this case with the documents necessary for the construction permission, such as the written consent for the use of the

Therefore, the court below should first clarify the written consent to the use of the site in which person or anyone is to construct the site in whose name it is, and further, should state what purport the agreement to transfer the name of the land to the person who is the permission.

3. In addition, when the plaintiff sells 164 of the above site to the non-party, etc. on January 10, 1987, the court below did not receive any down payment, and the payment date of the intermediate payment shall be July 30 of the same year, which is 6 months after 20 days from the date of the intermediate payment, and the payment date of the remainder shall be set at September 30 of the same year, which is 8 months and 20 days after the date of the intermediate payment, and the above site is divided into three lots on March 21 of the same year, which is before the payment of the intermediate payment is made, and on March 30 of the same year, the employer's name and purpose and place of use shall be clearly stated. The purport of this shall be that the non-party agrees to sell three houses in advance on the above site, and whether the payment of the above site was permitted by selling it in lots on the ground.

4. According to the testimony of Eul evidence Nos. 3 (a construction contract) and Eul evidence Nos. 6 and one witness of the court below, the non-party and the defendant entered into a contract to construct three units of multi-household house of 237 p.m. (five units of household loan) with the date of completion of August 15, 1987 as the date of completion of construction at KRW 630,000 per annum, one of them was agreed to construct with the permission under the name of the defendant as a security for construction cost, and it can be known that each building permit holder is different from Eul evidence Nos. 5, Eul evidence Nos. 1 through 9, Eul evidence Nos. 6 and the first instance court evidence that the building of this case is multi-household house of which three households reside in each household of each floor, and which is the multi-household building of which the construction permit was obtained on Apr. 27, 198, and after completion inspection on August 27, 1988.

5. If the Plaintiff consented to the construction of the building of this case on the site of this case, and the Defendant newly constructed the building of this case or allowed the Plaintiff to pay the price for the land by selling it in advance on the site of this case based on the Plaintiff’s consent, it is reasonable to deem that the Plaintiff, who was the principal, who performed the act of causing the construction of the building of this case on the site of this case, trusted or premised on the Plaintiff’s consent and permission, and demand removal on the ground that the contract for the construction of the building of this case was lawfully concluded and the above contract was rescinded with the Nonparty on the site of this case, even if it was based on the ownership of the building of this case, it is not acceptable in light of social, economic, and social principles as well as good faith.

6. The judgment of the court below is erroneous in the misapprehension of legal principles as to the principle of good faith, and it is so decided as per Disposition.

The defendant filed a counterclaim in the first instance court, but the part against the defendant as to the counterclaim in the judgment of the court below was waived, and thus the part against the defendant as to the principal lawsuit in the judgment below is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent

Justices Lee Jae-chul (Presiding Justice)