(영문) 수원지방법원 2020.2.12.선고 2019나9375 판결

1. Of the part against the Defendants in the judgment of the court of first instance, the part of the claim for removal of the remaining building and delivery of land, excluding the part of the claim for damages which became final and conclusive by the judgment of remand, shall be revoked, and

2. Of the total litigation cost between the Plaintiff and the Defendants, 2/3 shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

Purport of claim and appeal

1. Purport of claim

A. The Plaintiff:

(1) 피고 D은 별지 목록 제2항 기재 건물 중 별지 제1도면 표시 ㄷ, ㄹ, ㅁ, ㅂ, ㅅ, ㅇ, ㅈ, ㅋ1, ㄴ2, ㅂ1, ㄷ의 각 점을 순차로 연결한 선내 69.1m를,

(2) 피고 M는 별지 목록 제12항 기재 건물 중 별지 제2도면 표시 ㄴ4, ㄷ4, ㅇ4, ㅈ4, ㅊ4, ㅋ4, ㄴ4의 각 점을 순차로 연결한 선내 39.7m2를,

(3) Of the buildings listed in the attached list No. 13, Defendant N remove 39.7m2 on the ship, which connects each of the items indicated in the attached list No. 2 drawings c. 34, 4, 54, 64, 74, 84, and 39.7m2 in sequence.

B. The Plaintiff:

(1) Defendant D’s share 32.21/3 of the land listed in [Attachment List No. 14];

(2) Defendant M and N transfer each share of 24.52/165 of the land listed in [Attachment List No. 18].

C. The Plaintiff:

(1) The amount of money calculated by Defendant D’s 26,061,108 won and the amount of money calculated by the ratio of KRW 217,417 per month from January 1, 2016 to the time of transferring the part of Defendant D’s land possession under paragraph (1) above;

(2) The amount of money calculated by the ratio of KRW 126,891 per month from January 1, 2016 to the delivery of each part of the Defendant M and N’s possession of each land from January 1, 2016 to January 126,891.

each Payment Hadra

2. Purport of appeal

A. Defendant D, N

Of the judgment of the first instance, the part against Defendant D and N is revoked, and all of the Plaintiff’s claims against Defendant D and N are dismissed.

B. Defendant M

Of the judgment of the first instance, the part against Defendant M is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

Reasons

1. Objects to be tried on the political party after remand;

A. In the first instance court, the Plaintiff filed a claim against the Defendants and the Co-Defendant H, I, L, B, E, and F of the first instance court for removal of the building, delivery of the land, and damages against the Co-Defendant H, I, and L, and against the Co-Defendant of the first instance court. The first instance court partly accepted the Plaintiff’s claim against the Defendant M, Co-Defendant H, I, and L, and all claims against the Co-Defendant B, E, and F of the first instance court, including the Defendant D, N, and accordingly, the Plaintiff filed each appeal against the Plaintiff.

B. Each appeal against the Plaintiff’s co-defendant H, I, and L in the first instance trial and the Defendants’ respective appeals were dismissed, and only the Defendants appealed.

C. The Supreme Court partially accepted the Defendants’ appeal and reversed the part of the claim for removal of buildings and delivery of land among the part against the Defendants in the judgment of the party prior to remand, and remanded this part of the case.

D. Therefore, among the co-defendants of the first instance court and the part against the Defendants in the judgment prior to remanding, the part concerning the claim for damages was already separated and determined, and excluded from the scope of trial before remanding. Of the part against the Defendants in the judgment prior to remand, only the part concerning the removal of buildings and the claim for delivery of land were subject to trial before remanding.

2. Basic facts and Plaintiff’s assertion

The reasoning for this part of this Court is as stated in the corresponding part of the judgment of the court of first instance, and thus, this part is cited by the main text of Article 420 of the Civil Procedure Act.

3. Determination

A. Determination on the cause of the claim

According to the above facts, the defendants have the right to dispose of each of the buildings in question as the actual disposal authority or their inheritors who have acquired each of the buildings in question through sale and purchase or by payment in kind, and without holding the right to use the site of each of the building in question, they hold only the right to dispose of each of the buildings in question. The shares (the ratio corresponding to the area of each section of exclusive ownership out of the total area of the whole section of exclusive ownership in whole sections of exclusive ownership, the ratio corresponding to the area of each section of exclusive ownership in this case, and each of the lands listed in the attached Table 15, 17, and 18, other than each of the lands listed in the attached Table 15, 16, the site registration of which has been completed, shall be calculated according to the above ratio and the ratio corresponding to the actual area of possession out of the total area of the site. Accordingly, in full view of the purport of the result of the measurement and appraisal as to the branch offices of the Korea National Land Information Corporation in the first instance court, each of the above parts can be recognized as the purport of each of the claim.

B. Determination of the defendants' assertion

The reasoning for this part of this Court is as follows, 4-B of the reasoning of the first instance judgment (from No. 20 to the last day of the first instance judgment) pursuant to the main sentence of Article 420 of the Civil Procedure Act, except that the first instance judgment from No. 23 to No. 16 to No. 21 as follows:

“(1) In general, in a case where a building owner sells a site to a building owner, and a construction business owner has concluded to complete registration of ownership of a newly constructed house in the name of the building owner in order to secure the payment of the purchase price by newly constructing a multi-household house under the name of the building owner, the building owner shall be deemed to have consented to the construction business owner to use the land in constructing a new building. In a case where a construction business operator newly constructed a multi-household house and sold it to a third party, the building owner provided the cause of the new construction of a new building and the third party bought part of a newly constructed building in trust, and thus, the building owner's request for removal to a third party on the ground that the purchase price was rescinded, even if it was based on the ownership of the building (see, e.g., Supreme Court Decisions 91Da9756, Sep. 24, 1991; 203Da215218, Feb. 21, 2012; 2012; 2015Da2121827

(2) In full view of the aforementioned evidence and evidence Nos. 1 and 2-1 and the purport of the entire pleadings, the following circumstances are revealed.

① When selling each of the instant sites to AG, the Plaintiff agreed to newly construct a multi-household house under the name of the Plaintiff, Plaintiff’s wife, etc. with a construction permit, and to receive a payment of the purchase price as part of the purchase price, the Plaintiff agreed to use the instant site to newly build a 6-dong 36 households of the instant multi-household house.

② The initial buyer, etc. of the instant case was sold or paid in kind by AG with the trust of the Plaintiff’s consent.

③ Although the first buyer, etc. entered into an agreement to pay the remainder of the purchase price unpaid by AG to the Plaintiff on behalf of the Plaintiff, the agreement was rescinded. However, in the process of filing a lawsuit for share transfer registration with the Plaintiff, the Plaintiff refused to receive the agreement even though he made considerable efforts to pay the remainder of the purchase price to the Plaintiff by depositing the remainder of the purchase price.

④ The Plaintiff itself owns a large number of sections of multi-household houses in his/her name and his/her wife where there is no de facto disposal authority.

⑤ The Plaintiff filed the instant lawsuit as a means of pressure to pressure the Defendants, even though it was rendered a favorable judgment in favor of the Plaintiff regarding the removal of the building and delivery of land, as it is practically impossible to execute the construction thereof, and there was no particular benefit. The Plaintiff sought damages for the possession and use of each site of this case, and was rendered a favorable judgment in the first instance trial, and was in the position of demanding that the Defendants sell the part of exclusive ownership in which the Defendants actually owned the disposal right at the market price

(3) Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff’s act of causing new construction of a multi-household house on each of the instant sites is not permissible in light of the principle of trust and good faith even if it was based on the Plaintiff’s ownership as to each of the instant sites, and thus, seeking removal of the building and delivery of the land on the grounds that the Plaintiff’s act of causing new construction of a multi-household house on each of the instant sites was not paid the purchase price and the rescission of an agreement thereby,

4. Conclusion

Therefore, all of the plaintiff's claims against the defendants for removal of buildings and delivery of land must be dismissed. Since the part of the judgment of the court of first instance concerning removal of buildings and delivery of land against the defendants is unfair with different conclusions, the defendants' appeal against this part is accepted, and the part concerning the request for removal of buildings and delivery of land except for the part concerning the claim for damages which became final and conclusive by the judgment of remand among the part against the defendants in the judgment of the court of first instance is revoked, and all of the plaintiff's claims against the defendants falling under the revoked part