[1] The method for the registration of ownership preservation in the name of the person who acquired part of the aggregate building under construction after completion of the building

[2] The case holding that there is a benefit in legal action to seek implementation of the procedure for change of the name of the owner with respect to some sections of exclusive ownership for which registration of preservation of ownership was not made

[1] In constructing a collective building, even if an agreement on the transfer of a part of the section for exclusive use to a person who is not the owner of the building, is valid, the building permit is granted to one building (Article 11 and Article 2(1)2 of the Building Act). Since the nature of the building permit cannot be divided by the section for exclusive use, a person who acquires a part of the aggregate building under construction shall add the building to the joint owner of the building in accordance with the construction report pursuant to Article 11 of the Enforcement Rule of the Building Act before the approval for use is completed, in order to preserve ownership in his/her name after the completion of the building, the person who acquires the part of the section for exclusive use of the building under construction shall be registered as the joint owner of the building in accordance with the construction report pursuant to the construction report pursuant to Article 11 of the Enforcement Rule of the Building Act. After applying for the approval for use, the joint owner may register the transferee as the owner of the building management ledger

[2] The case holding that the court below ordered the defendant to implement the procedure for change of the name of the owner with respect to a part of multi-household housing for which the registration of ownership preservation is not made among multi-household housing, can be deemed to have the obligation to add the plaintiff to the joint owner of the building permit for the entire multi-household housing, and to vest the specific section for exclusive use in the plaintiff at the time of application for approval for use, and at least the judgment below cannot be deemed to have no possibility of execution since it can not serve as a document proving the change of the right to add the plaintiff to the joint owner from the report of change of the name of the construction participant under

[1] Article 186 of the Civil Code, Article 2(1)2 and Article 11 of the Building Act, Article 11 and Article 16 of the Enforcement Rule of the Building Act (attached Form 17) / [2] Article 248 of the Civil Procedure Act / [3] Article 18 of the Civil Code, Article 186 of the Civil Code, Article 2(1)2 and Article 11 of the Building Act, Articles 11 and 16 of the Enforcement Rule of the Building Act [attached Form 17]

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

Defendant 1 and three others (Law Firm Rodd, Attorneys Yellow-nam et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na4543 decided July 23, 2009

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

We examine the grounds of appeal.

1. Judgment on the first ground for appeal

In constructing aggregate buildings, even if an agreement to transfer part of the section for exclusive use to a person who is not the owner in the name of the owner is valid, the building permit is granted to one building (Article 11 and Article 2(1)2 of the Building Act). Since the nature of the building permit cannot be divided into sections for exclusive use due to the nature of the building permit, a person who acquires part of the section for exclusive use of the aggregate building under construction shall add himself/herself as a joint owner of the whole building in accordance with the building construction report pursuant to Article 11 of the Enforcement Rule of the Building Act before approval for use is completed in order to preserve ownership in his/her name after the completion of the building. After that, Article 16 of the Enforcement Rule of the Building Act [Attachment Form 17] of the Building Act (attached Form 17] shall be prepared by classifying the owner of the section for exclusive use and recording the transferee as the owner of the section for exclusive use.

For reasons indicated in its reasoning, the lower court ordered the Defendant to implement the procedure for change of the name of the building owner with respect to the building permit in the holding on six debts among the apartment houses in this case, which have not been registered as a joint owner of the building permit as to the entire multi-household houses in this case, as above, can be seen to the purport that the Defendant is obligated to add the Plaintiff as a joint owner of the building permit as to the entire multi-household houses in this case, and to revert a specific section for exclusive use to the Plaintiff at the time of applying for approval for use, and at least the lower judgment can serve as a document proving the change of the right to add the Plaintiff as a joint owner from the report on change of the building title in the name of the construction participant as stipulated in Article 1

2. Determination on grounds of appeal Nos. 2 and 4

In a case where it is recognized that the seal imprint affixed to the document is a seal affixed to the seal affixed to the title holder’s seal affixed to the document, barring any special circumstance, the establishment of the seal imprint shall be presumed to have been genuine based on the will of the title holder, i.e., the act of signing and sealing the document, and once presumed the authenticity of the document, the authenticity of the document shall also be presumed to have been duly formed pursuant to Article 358 of the Civil Procedure Act (see, e.g., Supreme Court Decisions 83Meu1843, Feb. 28, 1984; 85Meu109, Feb. 11, 1986). Thus, it is reasonable for the court below to recognize the authenticity of the document as to Nos. 4, 5, and 10, for which the seal imprint affixed to Nonparty 1 and 2, and there is no error in the misapprehension of the rules of evidence and the misapprehension of legal principles as to the interpretation of legal acts as alleged in the grounds for appeal.

3. Judgment on the sixth ground of appeal

If a trustee disposes of real estate entrusted to a third party, the third party acquires the ownership of the trust property completely effective (see Supreme Court Decision 2009Da2576, 2583, Apr. 9, 2009). Thus, the judgment of the court below is justified in rejecting the defendant's defense that the non-party 1's disposal of real estate under construction is null and void, and there is no misapprehension of the legal principle as to the validity of the disposal by the non-party without rights.

4. Determination on grounds of appeal Nos. 3 and 7

Since the secured claim of the security by means of transfer is to be determined at the stage of the execution of the security right, and the amount of the secured claim is not necessary to be determined at the stage of establishing the security right, the court below's rejection of the defendant's defense that the secured claim, which is to be secured by the security agreement of this case, has been extinguished by full repayment, and then ordered the defendant to change the name of the owner without establishing the secured claim amount, and there is no error of law such as misunderstanding of legal principles as to the confirmation of the secured claim

5. Judgment on the fifth ground for appeal

As long as the agreement between Nonparty 1 and the Plaintiff is a collateral security agreement premised on the duty to liquidate, it cannot be an unfair legal act by transferring the name of the owner of the instant multi-household housing having property value representing the amount of the claim for the purpose of collateral. In the same purport, it is reasonable to reject the Defendant’s defense that the instant collateral security agreement is null and void as an unfair legal act, and there is no error in the misapprehension of the legal principles as to unfair legal act

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)