In case where there is a dispute between individuals as to the de facto attribution of ownership of an unauthorized building during the process of implementing a housing redevelopment project, whether a civil lawsuit against the individual seeking the de facto verification of ownership of an unauthorized building or the verification of the status of a member is legitimate (affirmative with qualification)

When an redevelopment association performing an urban redevelopment project under the Urban Redevelopment Act gives its membership status to an owner of an unauthorized building registered in the ledger of unauthorized buildings, in cases where a dispute arises as to the actual ownership of an unauthorized building, the redevelopment association, once it treats the ownership of an unauthorized building or the status of its members as belonging to the owner on the ledger of unauthorized buildings, and the relationship of attribution of rights becomes final and conclusive after the judgment, etc. becomes final and conclusive, it cannot be corrected accordingly. Therefore, the most effective and appropriate means to resolve disputes between individuals with respect to the ownership of such rights or status can be adopted by the holder of the right. Thus, after the redevelopment association obtains the actual verification of ownership of an unauthorized building against the party to the dispute, or temporarily changes the ownership of an unauthorized building to the status of its members by the authorization and public notice of the management and disposal plan, the ownership of an unauthorized building should be confirmed as a right holder of the apartment building, or after the purchase of the apartment building falling under such ownership has been temporarily changed to the status of its members. In such cases, the redevelopment association can immediately file a lawsuit against the ownership or public notice of change of ownership in the ownership (the foregoing.

Article 250 of the Civil Procedure Act, Articles 14, 34, and 39 of the Urban Redevelopment Act

Plaintiff (Attorney Jeong-chul et al., Counsel for plaintiff-appellant)

Defendant (Liwon Law Firm, Attorneys Excellent Young-young, Counsel for defendant-appellant)

Seoul District Court Decision 200 1Na30307 delivered on March 22, 2002

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court. The remaining appeal is dismissed.

1. The judgment of the court below

A. The basic facts acknowledged by the lower court based on the evidence produced are as follows.

(1) The instant building Nos. 1 and 2 are adjoining each other as an unauthorized building constructed at the time of maintenance. It is stated that it was newly constructed on June 28, 1970 on the ledger of an unauthorized Building.

(2) On the ledger of an unauthorized Building, the first owner of the building of this case, the size of which is 12 square meters, was Nonparty 1, and after the Plaintiff moved into the building of this case on May 29, 1983, the title of ownership was changed to the Plaintiff on February 22, 1985. The second building of this case, the area of which is 6 square meters, was the first owner Nonparty 2, the Defendant’s prior owner, who was the deceased on September 19, 197, and the Defendant succeeded to the building on October 14, 199, by agreement division, and the name of ownership was changed to the Defendant on October 14, 199.

(3) In order to construct an apartment building on a site on which the instant building Nos. 1 and 2 is located and on the land of the said building, the Urban Redevelopment Act was established on August 19, 196 by ○○○, Zone 7, Zone 2, Housing Redevelopment Association (hereinafter “Non-Party Partnership”) under the Urban Redevelopment Act. As a result, the Plaintiff and the Defendant, registered as the owner of the instant building on the ledger of unauthorized Building Nos. 1 and 2 as the owner of the instant building, was registered on the ledger of members (No. 1364, Defendant 1363).

(4) In accordance with the establishment and authorization of the management and disposal plan, the non-party union and the defendant were determined to be eligible for apartment sales, and the defendant entered into an apartment supply contract with the non-party union with the content that the △△△△△△△ apartment, which will be newly constructed on December 5, 200, will be provided with 105 1806 △△△△△△△△△ apartment, and the plaintiff will be provided with 123

B. Unlike the ownership of the building No. 2 on the ledger of unauthorized Building No. 1, the Plaintiff changed the name of the Defendant on the list of non-party association members (1363 number) on the ground that it is the actual owner of the building. In addition, the Defendant sought confirmation of the status of non-party association members falling under the number No. 1363, and the Plaintiff sought confirmation of the status of association members falling under the number No. 1363 (the Plaintiff demanded to implement the procedure of changing the name of the purchaser of the supply contract on the above apartment No. 105 and 1806, which the Defendant agreed to purchase, but the lower court dismissed this part of the claim. The lower court determined that the Plaintiff is not the Plaintiff but the de facto owner of the building No. 2, and even though the Plaintiff is the de facto owner of the building of this case, the lower court did not have any dispute over the change of the status of association members in the name of the non-party association No. 2 under the Urban Redevelopment Act as well as the change of the status of association members.

2. Judgment on the grounds of appeal

However, the judgment of the court below on the dismissed part of the lawsuit is not acceptable.

When an redevelopment association performing an urban redevelopment project under the Urban Redevelopment Act gives its membership status to an owner of an unauthorized building registered in the ledger of unauthorized buildings, in cases where a dispute arises as to the actual ownership of an unauthorized building, the redevelopment association, once it treats the ownership of an unauthorized building or the status of its members as belonging to the owner on the ledger of unauthorized buildings, and the relationship of attribution of rights becomes final and conclusive after the judgment, etc. becomes final and conclusive, it cannot be corrected accordingly. Thus, the most effective and appropriate means to resolve disputes between individuals with respect to the ownership of such rights or status can be adopted by the holder of the right. Thus, after the redevelopment association obtains the actual verification of ownership of an unauthorized building against the party to the dispute, or temporarily changes the ownership of an unauthorized building to the status of its members by the authorization and public notice of the management and disposal plan, the ownership of an unauthorized building should be confirmed as the right holder of the existing apartment building or the registration of transfer of an unauthorized building to the status of its members. In such cases, the existing redevelopment association can only file a civil lawsuit against the owner of the right to the apartment building in its name or status.

Therefore, in this case where the defendant registered as the owner on the register of unauthorized Building No. 2, and the non-party association also entered the ownership of the above building or the right to purchase an apartment house or the status of the member of the association as to the above building belongs to the defendant and entered into an apartment supply contract (it appears that the record does not yet proceed to the public notice of the sale order). The plaintiff's claim for confirmation of the status of the member of the building No. 2 and the claim for change of the name on the register of the association members against the defendant who is the actual owner of the building No. 2 and has the opposing interest by asserting the ownership of the right or status as the owner of the building of this case and brought a civil lawsuit against the defendant who is the opposing interest, is legitimate and there is no reason to bring the lawsuit as above because the plaintiff had already been in the status

Nevertheless, the court below held that the lawsuit for the change of name and the confirmation of the status of union members among the claims in this case was unlawful, solely based on its stated reasoning. In so doing, the court below erred by misapprehending the legal principles as to the litigation requirements, thereby affecting the conclusion of the judgment.

3. As to the dismissal part

In addition, with respect to the part of the judgment below against the plaintiff, there is no indication in the petition of appeal or the appellate brief on the part of the judgment below against the plaintiff (the plaintiff alleged that the court below rejected the lawsuit on this part of the claim, but it seems that it resulted from the misunderstanding of the judgment below

4. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal by the plaintiff are without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-dam (Presiding Justice)