Plaintiff (Law Firm Han River, Attorneys Kim Jong-dae et al., Counsel for plaintiff-appellant)

Defendant 1 and two others (Attorney Yu Jong-woo, Counsel for the defendant-appellant)

August 26, 2015

Suwon District Court Decision 2013Ra212164 Decided December 5, 2014

1. The defendants' appeal is dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Plaintiff

A. As to the section 145 square meters in order among the land listed in the separate sheet No. 2 in the separate sheet No. 1, 2, 7, 8, and 1, Defendant Gangseo-gu C&C Co., Ltd., the registration of cancellation of ownership transfer completed under No. 12870 on March 17, 2010 and the registration procedure for cancellation of ownership transfer completed under No. 17889 on April 9, 2010 with respect to the section 145 square meters in order among the land listed in the separate sheet No. 2 in the separate sheet No. 2;

B. Defendant 3 performed the registration procedure for cancellation of ownership transfer registration completed on March 17, 2010 by the Sungwon District Court Sung-nam Branch of Seoul District Court as the receipt No. 12871 on March 17, 2010 with respect to the section 2, 3, 4, 6, 7, and 2 of the separate sheet among the land listed in the separate sheet No. 3 as indicated in the separate sheet, and completed the registration procedure for cancellation of ownership transfer registration completed on April 9, 2010 as the receipt No. 17890 on April 9, 2010, and completed the registration procedure for cancellation of ownership transfer registration completed on April 17, 2010 with respect to the section 9 square meters of the separate sheet among the land listed in the separate sheet No. 4 in the separate sheet, and completed the procedure for cancellation of ownership transfer registration completed on March 17, 2010 by the same registry office as the receipt of No. 17891, Apr. 9, 2010

C. As to the land No. 1 listed in the separate sheet, Defendant 1 shall implement the procedure for registration of cancellation of ownership transfer registration completed on August 11, 2001 by receipt No. 34769, which was completed on August 11, 2001.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

A. The plaintiff △△△△ (Korean name 1 omitted), and (date 1 omitted) purchased the land indicated in the separate sheet (hereinafter "the land in this case") on June 6, 1962 and completed the registration of ownership transfer on June 26, 1962.

B. Defendant 1 completed the ownership transfer registration on August 11, 2001 (hereinafter “instant ownership transfer registration”) based on sale and purchase on July 30, 2001 with respect to the instant land from Suwon District Court, Sungwon-nam Branch Office, Sungnam-gu, Gwangju District Court (hereinafter “Seoul District Court”). After that, Defendant Gangwon-gu C&C Co., Ltd. (hereinafter “Defendant”) completed the ownership transfer registration on March 10, 201 with respect to the instant land, the ownership transfer registration on March 17, 2010 with respect to the portion of 145/496 out of the instant land was received on March 17, 2010 by the same registry office, and Defendant 3 completed the ownership transfer registration on March 17, 2010 with respect to the remaining portion of 351/496 out of the instant land as the receipt on March 17, 2010.

C. On April 6, 2010, the instant land was divided into a river of 145 square meters (where the land category is changed to a site on May 12, 201), a river of 342 square meters (where the land category is changed to a site on November 24, 2010), (where the land category is changed to a site on November 24, 2010), and (where the land category is changed to a site on October 14, 201), a river of 9 square meters (where the land category is changed to a site on October 14, 201).

D. Defendant 3 completed the registration of ownership transfer based on the partition of co-owned property on April 6, 2010, with the Suwon District Court Sung-nam Branch Office, Law No. 17889, which was received on April 9, 2010, with respect to the portion of 145/496 out of the land ( Address 2 omitted) after the said division to Defendant Company. Defendant Company completed the registration of ownership transfer based on the partition of co-owned property on April 6, 2010 with respect to the portion of 145/496 out of the said ( Address 2 omitted) land under the receipt No. 17890, April 9, 2010 by the same registry office as to the portion of 145/496 out of the said ( Address 3 omitted) land under the same registry office on April 9, 2010.

E. On May 6, 201, the land ( Address 1 omitted) after subdivision was combined with the land ( Address 4 omitted) on May 6, 201, and became the land (hereinafter “instant land 2”). The said ( Address 2 omitted) land was combined with the land ( Address 5, 6, 7, and 8 omitted) on November 22, 2010, and the said ( Address 5, 6, 7, and 8 omitted) was the third land listed in the attached list (hereinafter “instant three land”). The said ( Address 3 omitted) land was combined with the land on October 13, 201, and became the land listed in the attached list (hereinafter “instant land 4”).

F. Following the above procedure, Defendant Company completed each registration of ownership transfer on the whole land of this case 3 and 4, and Defendant 3 completed each registration of ownership transfer on the land of this case 2 on the land of this case, the registration was completed to the effect that the 103 aggregate building, an aggregate building, ○○○○○○○○○○ (hereinafter “the instant aggregate building”), and the 104 aggregate building on the land of this case 3 aggregate building, and the 105 aggregate building on the land of this case 4 aggregate building, as the 2, 3, and 4 aggregate building of this case was newly constructed on the land of this case, there was a site ownership for the owners of the instant aggregate building.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap's 1 through 4 (if there is an additional number, including a branch number; hereinafter the same shall apply) and the purport of whole pleadings

2. Determination as to the defendants' main defense

A. The defendants' defense

The land of this case 2, 3, and 4 was the land which is the object of the site right that can not be disposed of separately from the exclusive ownership of the instant aggregate building pursuant to the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the “Aggregate Buildings Act”). Since the registry of the instant 2, 3, and 4 land is different from the registry of closure, seeking the registration of alteration of rights for this, there is no benefit of lawsuit.

In addition, the Defendants of this case are not currently a registered titleholder of the currently effective registry, and thus cannot be deemed as a registered titleholder. Thus, without cancelling the registration to the effect that the Plaintiff is a site ownership, seeking cancellation of the ownership transfer registration against the Defendants without cancelling the registration to the effect that the Plaintiff is a site ownership is unlawful as it serves as the Defendant

B. Determination

The right to use a site, which is prohibited from a separate disposition pursuant to Article 20 of the Aggregate Buildings Act, is a right that a sectional owner has against a site of a building in order to own a section for exclusive use. Thus, the right that a person who is not a sectional owner prior to the construction of an aggregate building has against a section for exclusive use, regardless of the ownership of a section for exclusive use. (See Supreme Court Decision 2010Da6017, May 27, 2010, etc.) is not subject to a restriction on the prohibition of a separate disposition pursuant to Article 20 of the Aggregate Buildings Act, since the plaintiff has ownership of the land of this case, regardless of the ownership of the section for exclusive use from before the construction of the aggregate building in this case, regardless of the ownership of the section for exclusive use, and thus, the lawsuit in this case does not have a benefit of lawsuit, or a person who is not the defendant, is not the defendant, and therefore the safety defense of

3. Judgment on the merits

A. Determination on the cause of the claim

Comprehensively taking account of the statements Nos. 1, 2, 3, and 1, 8 evidence Nos. 1, 1, and 1, and 1 and 8 testimony and the purport of the whole pleadings, the copy of the register of the land of this case, which was electronically transferred on June 15, 2001, is only a “△△△△△△” with the owner’s resident registration number or Chinese name, and the non-party 1’s husband Nonparty 3 requested the non-party 1 to purchase the land of this case, and the non-party 1 visited Gwangju-gun, which was located in the owner’s domicile after obtaining a certified copy of the register of the land of this case, and the non-party 1 did not find “△△△△△△△△△△△△△△△△△△△△△△△△△△, which was solicited by the non-party 1 and the non-party 2 to sell the land of this case (the non-party 2 omitted), and the non-party 1 and the non-party 2 (the non-party 2) omitted.

According to the above facts, the ownership transfer registration of this case shall be cancelled as it is an invalidation of the cause caused without permission, without being based on the intent of the plaintiff, who is the owner of the land of this case. The registration of ownership transfer of this case shall also be cancelled as it is based on the registration of ownership transfer of this case, and each registration of ownership transfer in the purport of the defendant company, defendant 3, shall be deemed invalid

B. Determination as to the defendants' assertion

1) Judgment on the claim for completion of the statute of limitations for acquisition of the registry

Since Defendant 1 acquired the registration of transfer of ownership in this case, and the Defendants occupied the instant land in good faith and public performance with intent to own it for ten years, without negligence, the Defendants asserted that the acquisition by prescription on August 11, 201 after the completion of the registration of transfer of ownership in this case is valid registration in accordance with the substantive relationship.

On the other hand, in the case of the acquisition of the registry, it is necessary that there was no negligence in the commencement of possession, and the burden of proof is against the claimant (see Supreme Court Decision 92Da30245 delivered on November 13, 192, etc.).

In full view of the facts acknowledged earlier, Nonparty 5’s testimony and the overall purport of Nonparty 2’s testimony and argument at the court of first instance. At the time of Nonparty 5’s solicitation for sale of the instant land to Nonparty 2 △△△△△△△△ (Korean name 2 omitted) without knowing the existence of the instant land, and the address was also located at a place different from that indicated in the certified copy of the instant land registry. The above Nonparty 2 △△△△△△△△ (Korean name 2 omitted) was born in 1957, which was the purchase date indicated in the certified copy of the instant land registry, on June 6, 1962, which was the date indicated in the certified copy of the instant registry. Defendant 1 purchased the instant land and did not have any negligence on the part of Nonparty 2 △△△△△△△△ (Korean name 2 omitted), which was the real owner of the instant land at the time of the acquisition of possession, notwithstanding the fact that Nonparty 2 was not found to have resided in the instant registry (the title 2 omitted omitted).

Therefore, the above assertion by the Defendants cannot be accepted.

2) Determination on the assertion of violation of the principle of good faith or the principle of good faith

In addition, the defendants asserts that the plaintiff's late exercise of rights is contrary to the principle of trust and good faith or the principle of no-competence.

However, in order to deny the exercise of the right on the ground that it violates the principle of trust and good faith, there must be circumstances to deem that the other party has granted a good faith to the other party or that the other party has good faith from an objective point of view, and that the exercise of the right against the other party’s good faith has to reach an extent that it is not acceptable in light of the concept of justice (see Supreme Court Decision 91Da3802, Dec. 10, 191) and that the exercise of the right is not permitted in accordance with the so-called principle of invalidation, even though the right holder had an opportunity to exercise the right actually, the other party is not obliged to exercise the right for a considerable period of time, and even if the right holder was not able to exercise the right, the other party has a legitimate expectation to believe that the exercise of the right would not be in violation of the principle of trust and good faith under the overall control of the legal order. (See Supreme Court Decision 2005Da45827, Oct. 28, 2005).

Therefore, the above assertion by the Defendants cannot be accepted.

4. Conclusion

Therefore, all of the plaintiff's claims are justified, and the judgment of the court of first instance is just in conclusion, and the appeal by the defendants is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Ansan-ro (Presiding Judge) Kim Young-young