Plaintiff (Attorney Han-won, Counsel for the plaintiff-appellant)

Defendant 1 and 42 others (Attorney Shin Jae-soo, Counsel for the defendant-appellant)

July 3, 2009

1. All of the plaintiff's claims are dismissed.

2. All costs of lawsuit are assessed against the Plaintiff.

[Attachment 1] Each Defendants stated “Defendant” shall pay to the Plaintiff each amount of money at the rate of 20% per annum from the date of entry of each “day” to the date of full payment from the date of full payment of each of the money and each of the above money stated “day 2” to the Plaintiff.

1. Basic facts

A. The Dongjak-gu Seoul Metropolitan Government Blackdong (Land Number 1 omitted) 3,382 square meters (hereinafter “instant site”) was owned by Nonparty 1, the Plaintiff’s attachment.

B. On October 1, 1973, Nonparty 1 newly constructed a main complex building with five stories above the ground on the instant site and the adjacent Seoul Metropolitan Government Blackdong (number 2 omitted) approximately 936 square meters, and sold the building, which was under construction, to the Jung-gu Co., Ltd. (the representative director at that time, Nonparty 8 was changed to Nonparty 1’s East-dong, the Hong-dong Development Co., Ltd.) on October 1, 1973.

C. After completing the construction of the above building and obtaining approval for the use on January 7, 1976, the Jung-man Co., Ltd. sold each apartment house of 3 to 5 floors (hereinafter “the apartment house of this case”) to the persons entered in the “the first buyer” column of the attached Table 2: the attached Table 2:

D. At present, the apartment house of this case is owned by the Defendants indicated in the attached Table 2 ‘Attachment 2 ‘the present owner' column.

E. Meanwhile, the instant land is owned by the Plaintiff on March 18, 1995.

[Ground of recognition] No. 1, and the purport of the whole pleading

2. Determination on the cause of the claim

The Plaintiff is the owner of the instant site, and the Defendants own each apartment on the instant site, and use and benefit from the instant site. Therefore, the Defendants are obligated to return unjust enrichment resulting from the use and benefit of the instant site and damages for delay thereof to the Plaintiff, barring any special circumstance.

3. Judgment on the defendant's defense

(a) The defense for purchase;

(1) The Defendants primarily purchased the share of the instant site with each section of exclusive ownership at the time of the purchase of the instant apartment, and the Defendants directly purchased the share of the instant site or purchased it before the purchase. The Defendants are entitled to occupy the instant site, and therefore, they cannot respond to the Plaintiff’s request.

(2) The defendants' defense is without merit, since there is no evidence to prove that the first buyer purchased the share of the site of this case with the section for exclusive use of the apartment of this case.

(b) Defenses concerning prescriptive acquisition;

(1) The Defendants: (a) as the site of the instant apartment, the instant site is the site of the instant apartment; (b) the “owner at the time of the completion of the prescription” of the attached Table 2: (c) the Plaintiff occupied the instant apartment site in peace and public performance with intent to own it for twenty (20) years from the date indicated in the “the date of commencement of possession” of the first buyer; and (d) the ombudsman acquired prescription equivalent to the percentage of each section of exclusive ownership of the instant apartment among the instant site on the date indicated in the “date of the completion of prescription” of the instant apartment site; and (b) the Defendants are in the position to file a claim for the registration of ownership transfer for a certain portion of the instant apartment site on the part

(2) According to the overall purport of the statements and arguments in the evidence No. 4-1 to No. 38, the following facts can be acknowledged: [Attachment No. 2] The “owner at the time of completion of the statute of limitations” of the attached Table No. 2: The “the date of possession” of the same Table

Furthermore, as to whether the owner has occupied the instant site in a peaceful and public manner at the time of the completion of the acquisition by prescription, the intention to own the site should be determined depending on the nature of the source of possessor’s right, but if the nature of the source of possessor’s right is not clear, the possessor is presumed to have occupied possession in a peaceful and public manner with his/her intention pursuant to Article 197(1) of the Civil Act. Thus, the possessor is not actively responsible for claiming and proving that the source of possessor’s right is possession and the possessor is not the owner’s possession, and is responsible for proving this to the other party who asserts that the occupancy is the owner (see Supreme Court Decision 2007Da77279, May 8, 2008, etc.). As to the instant site, the Plaintiff did not complete the registration of the right to land for the purpose of owning the instant apartment at the time of the completion of the acquisition by prescription, and it is difficult to see that the first buyer or the owner was aware of such circumstances at the time of the purchase by lots or before the apartment.

(3) Therefore, at the time of the completion of the acquisition by prescription, the owner shall have acquired the same proportion of the land in this case on the date indicated in the "Date of the acquisition by prescription", and upon the completion of the acquisition by prescription, the possessor may file a claim against the nominal owner for the implementation of the procedure for the registration of ownership transfer for the completion of the acquisition by prescription, and the nominal owner is obligated to comply with it, and even if the possessor did not complete the registration of ownership transfer under his name and did not acquire the ownership yet, the nominal owner may not file a claim for return of unjust enrichment from possession against the possessor (see, e.g., Supreme Court Decision 92Da51280, May 25, 1993). The defendants are the owners at the time of the completion of the acquisition by prescription or purchaser of the land in this case, who are the owners at the time of the completion of the acquisition by prescription, and therefore, the plaintiff's claim for return of unjust enrichment against the defendants of the defendants is not allowed.

4. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Limited Restrictions (Presiding Judge)