[1] In a case where a method of change of real right to an unauthorized building and a double transfer of an unauthorized building without due process is made, whether the pre-sale agent is entitled to file a claim for change of ownership against the purchaser after being registered as an owner on the ledger of an unauthorized building (negative)

[2] The meaning of and criteria for determining the owner of an unauthorized building where the articles of association of the Housing Improvement and Redevelopment Partnership grants the qualification to the owner of an unauthorized building separate from the owner of the land and building

[3] The method of filing a lawsuit against the redevelopment association where disputes arise as to whether the redevelopment association is qualified as a partner or the contents of the management and disposition plan

[1] Since the new construction of an unauthorized building is an acquisition of a real right other than a juristic act, the new owner shall be deemed to have acquired the ownership without registration. However, if it is transferred, the ownership cannot be transferred by the act of real right and delivery without registration. Even if the possessor purchases it from the new constructor of an unauthorized building and occupies it, the possessor cannot acquire the ownership, and the new constructor cannot be deemed to have lost his/her legal authority to dispose of it. Thus, the owner on the ledger of an unauthorized Building cannot be deemed to have acquired the ownership, and the owner on the ledger of an unauthorized Building after double purchase from the new constructor via a third party, and the possessor shall not be deemed to have the authority to request the change of ownership on the ledger of an Unauthorized Building by means of

[2] In a case where the articles of association of the Housing Improvement and Redevelopment Cooperatives grants a membership qualification to a person who owns an unauthorized building, separate from the owner of a building within a redevelopment project implementation zone, it shall be interpreted that the de facto owner grants a membership qualification to the association. It is not interpreted that the first new constructor still belongs to the legal ownership, and thus the new constructor obtains a membership qualification. In this case, the de facto owner shall be determined by comprehensively taking into account the following: (a) details of the acquisition of the relevant unauthorized building; (b) details of the acquisition by transfer; (c) the relationship of possession and use; (d) the payment of property tax; and (e) the registration on the ledger of an unauthorized building;

[3] In the case of an action against the redevelopment association, if there is a dispute as to whether the redevelopment association's qualification is recognized, it shall be required to verify its member's qualification by a party suit under public law, and if there is a dispute as to the contents of the management and disposal plan determined after the application for parcelling-out, it may be demanded to revoke the management and disposal plan or the

[1] Articles 186 and 187 of the Civil Act / [2] Articles 2 (see current Article 2) and 20 (see current Article 14) of the former Urban Redevelopment Act (wholly amended by Act No. 5116, Dec. 29, 1995); Article 186 of the Civil Act / [3] Articles 20 (see current Article 14), 41 (see current Article 34), 67 (see current Article 60), 19, and 39 of the Administrative Litigation Act

[1] Supreme Court Decision 94Da53006 delivered on June 14, 1996 (Gong1996Ha, 2144) / [2] Supreme Court Decision 93Da40249 delivered on June 28, 1994 (Gong1994Ha, 2084) / [3] Supreme Court en banc Decision 94Da31235 delivered on February 15, 1996 (Gong196Sang, 768)

Plaintiff (Attorney Lee In-hoon et al., Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 95Na629 delivered on August 30, 1995

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

Even if the initial preservation registration of an unauthorized building is practically impossible, delivery, which is not a registration, cannot be deemed a public announcement method in the change of real rights due to legal act. Since the new construction of an unauthorized building is the acquisition of real rights that are not by legal act, its new constructor would have acquired the ownership in the original form without registration. However, if it is transferred, the ownership can not be transferred by act of real right and delivery without registration.

In the instant case, even if the Plaintiff purchased and possessed an unauthorized building from Nonparty 1, who is the new building without permission in this case, and it cannot be deemed that Nonparty 1 lost its legal authority to dispose of the building. Thus, the Defendant cannot be deemed to have the authority to request the alteration of ownership on the ledger of an unauthorized building by directly purchasing the building from Nonparty 1 through Nonparty 2 and registering the owner on the ledger of an unauthorized building. Thus, the Plaintiff cannot be deemed to have the authority to request the alteration of ownership on the ledger of an unauthorized building (see, e.g., Supreme Court en banc Decision 99Hun-Ga4, supra, where the articles of incorporation of the Housing Redevelopment Development Association provides the ownership of an unauthorized building separate from the owner of the building in the redevelopment project implementation zone, if the Plaintiff becomes qualified as an association member, the ownership of the building should still be interpreted to have been granted to the first new constructor, and in this case, the actual owner shall not be deemed to have acquired the qualification of association member after being aware of the ownership of the building without permission in this case, and whether the building was registered as an association member 94.

In the same purport, the decision of the court below which rejected the plaintiff's request for change of the name of the unauthorized building ledger is just and it is not erroneous as otherwise alleged in the ground of appeal.

Therefore, the appeal shall be dismissed and the costs of appeal shall be assessed against the plaintiff who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)