Plaintiff

Republic of Korea and two others (Attorney Lee Jae-hwan, Counsel for the plaintiff-appellant)

June 19, 2015

1. Defendant Republic of Korea and Defendant 3 jointly pay to the Plaintiff the amount of KRW 22,650,000 and the amount of KRW 22,650,00 to the Plaintiff, Defendant Republic of Korea from October 25, 2014 to Defendant 3, Defendant 5% per annum from December 6, 2014 to July 10, 2015, and 20% per annum from the following day to the date of full payment.

2. The plaintiff's remaining claims against the defendant Republic of Korea and the defendant 3 and the defendant Songpa Agricultural Cooperative are dismissed, respectively.

3. Of the litigation costs incurred between the Plaintiff, Defendant Republic of Korea, and Defendant 3, 60% is borne by the Plaintiff, and 40% is borne by the said Defendants, and the litigation costs incurred between the Plaintiff and the Defendant Songpa Agricultural Cooperative is borne by the Plaintiff

4. Paragraph 1 can be provisionally executed.

The defendants jointly and severally pay to the plaintiff 60,000,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint to the day of full payment.

1. Basic facts

A. Defendant 3 (Defendant 2: Defendant 2) acquired the ownership of 401 and 402 from among the 4th floor aggregate buildings on the ground of the Nam-gu, Incheon. On June 7, 1984 and May 17, 1991, Defendant 3 (the second instance court: Defendant 2) respectively. On the register of the above 402 (the building in this case), on November 14, 1986, the registration was made on the part of the indication of the land which is the object of the right to a site, in the title of 708.1 square meters, and the part of the indication of the right to a site, "65.8/10 of the ownership" on January 17, 1991, on the ground that the part of the above right to a site was cancelled on the ground of discovery of mistake on January 14, 199.

B. On June 29, 1982, Nonparty 1 and Nonparty 2 completed the registration of ownership transfer on May 4, 1984 as to the shares of 65.8/708/70 of the building site in Nam-gu, Incheon ( Address omitted) Incheon (hereinafter “instant building site”). Defendant 3 acquired the ownership of the instant building on May 17, 1991 and completed the registration of ownership transfer as to the shares of 65.8/1,416.2 (Share 32.9/1,70). The instant building site was registered as the ownership of the said aggregate building, but it was not registered as to the said shares.

C. On April 20, 2007, with regard to subparagraphs 401 and 402, Defendant 3 completed the registration of creation of a mortgage over the maximum debt amount of 39,000,000 won against Defendant Song-gu Agricultural Cooperative on April 20, 2007. Upon application by Defendant Song-gu Agricultural Cooperative, the Plaintiff was awarded a successful bid for each of the said real estate in the procedure of voluntary auction at the Incheon District Court 2013 19109, and completed the registration of ownership transfer on February 14, 2014. At the time of the above auction under subparagraphs 401 and 402, the appraised value of the instant building was KRW 60,00,000, the appraised value of the instant building was KRW 400,000,000, the total of KRW 401 and 402,000,000. The Plaintiff was awarded a successful bid amount of KRW 302,000,00.

D. The Plaintiff sold the instant building to Nonparty 5 and Nonparty 6, and the instant building to MFC Co., Ltd., and completed each registration of ownership transfer on June 11, 2014.

[Ground of recognition] Facts without dispute, Gap 1 through 3 (including each number), Gap 7's entries, the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The building of this case is registered as if it had a right to a site equivalent to 65.8 percent of 708.1, but in fact there is no right to a site. Therefore, the defendant Republic of Korea is liable for tort due to a new registry, as if a registered public official’s right to a site exists by negligence. Meanwhile, the defendant 3, who is an auction obligor, and the auction obligee, are liable to return the amount equivalent to the successful bid price corresponding to the right to a site that is not actually existed in the plaintiff. In addition, since the defendant 3 and the auction obligee, who are aware of the absence of the right

B. Whether liability is established

1) Whether the right to a site is established and scope thereof

According to the facts acknowledged above, 32.9 percent shares of the site of this case where the registration under the name of defendant 3 was completed shall be deemed the right to use the site of this case for the ownership of the building of this case, and unless there is a separate agreement that it is possible to separately dispose of land and buildings, this shall be deemed to have been established as the right to a site that cannot be disposed of separately from the building of this case under the Act on the Ownership and Management of Aggregate Buildings. Therefore, regardless of whether to register the right to a site of this case, the plaintiff, regardless of whether to register the right to a site of this case, shall be deemed to have acquired the above right to a site by winning a successful bid of the building of this case. Therefore, the plaintiff cannot be deemed to have acquired the building without the right to a site as the plaintiff's assertion, but the right to a site actually acquired by the plaintiff

2) Defendant Republic of Korea’s responsibility

Despite the cancellation of the part of the right to a site in the registry of the instant building, it shall be deemed that there was a negligence by the registry official in registering that the right to a site is 65.8/1, 708 shares in a new registry, and that the right to a site is registered. Therefore, the Defendant Republic of Korea is liable for damages sustained by the Plaintiff upon successful bid on the premise that the Plaintiff’s right to a site in the instant building is 65.8 shares 65

3) Responsibility of the Defendant 3 and the Pacific Agricultural Cooperative

Since the share of 32.9/708 of the right to a site among the right to the building of this case, which was the object of the auction, cannot be transferred to the plaintiff, the plaintiff may request the defendant 3, who is the debtor at the auction, to reduce the price corresponding thereto pursuant to Article 578(1) of the Civil Act.

However, unless there is any assertion or proof as to Defendant 3’s absence of financial ability, the claim for the reduction of the price against the Defendant Songdong Agricultural Cooperative, an auction creditor, is groundless, and in light of the facts acknowledged earlier, it is difficult to view that the above Defendants knew that the site right of the building of this case is insufficient to enter it in the register and did not notify it or claimed an auction, and there is no other evidence to acknowledge it, and therefore, the above Defendants are liable for damages.

C. Scope of liability

As seen earlier, the appraised value of the instant building at the time of the auction is KRW 60,00,00, and KRW 140,000,000, and KRW 401 and KRW 402, and the Plaintiff was awarded a successful bid of KRW 302,00,00. As such, the successful bid price of the instant building is KRW 151,00,000, and the land price is KRW 45,300,000. However, since the Plaintiff acquired only 1/2 of the site price indicated in the registry, Defendant 3 may seek a return of KRW 1/22,650,00,00, which is the land price.

In addition, the plaintiff suffered losses equivalent to the same amount due to the lack of the right to a site in the building of this case which was knocked by the plaintiff (the defendant's Republic of Korea did not actually cause the plaintiff's losses, but the defendant's Republic of Korea is obliged to compensate the plaintiff for damages equivalent to the above amount of damages on the ground that the damage to the property caused by the illegal harmful act was the disadvantage of the property, that is, the property condition that would have existed without the illegal act, and the current property status that became the illegal act, and that the plaintiff could be liable for the warranty against the defendant's owner, etc., and therefore the above claim cannot be

3. Conclusion

Therefore, Defendant Republic of Korea and Defendant 3 are jointly obligated to pay 22,650,000 won and damages for delay thereof to the Plaintiff. Thus, the Plaintiff’s claim is accepted within the above scope, and the remainder of the claim against the said Defendants and the claim against the Defendant Songpa Agricultural Cooperative is dismissed. It is so decided as per Disposition.

Judges Yellow Hun-Ba