(영문) 서울고등법원 2019.1.18. 선고 2017나2066115 판결

A. The part of the claim for the cancellation of the ownership transfer registration with respect to each real estate listed in the separate sheet Nos. 1, 3, and 6 added at the trial among the principal suit of this case shall be dismissed.

B. The Defendant (Counterclaim Plaintiff) shall pay the Plaintiff (Counterclaim Defendant) 200 million won with the interest of 5% per annum from September 10, 2016 to October 18, 2017, and 15% per annum from the following day to the date of full payment.

C. The Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Plaintiff)

1) deliver each real estate listed in Schedule 1 to 4, 6, and

2) 71,723,00 won and the interest thereon shall be paid 5% per annum from June 21, 2017 to January 18, 2019, and 15% per annum from the following day to the date of full payment; and

3) From May 18, 2017 to the completion date of delivery of each of the above real estate, money shall be paid at the rate of KRW 15,480,00 per month.

D. All of the Plaintiff (Counterclaim Defendant)’s remainder of the main claim and the remainder of the Defendant (Counterclaim Plaintiff) are dismissed.

2. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by the Defendant (Counterclaim Plaintiff) respectively.

3. The above paragraphs (1) and (3) may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The principal lawsuit: the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) implements the procedure for the registration of cancellation of ownership transfer as to the real estate listed in paragraph (2) of the attached Table No. 1, 3, 4, and 6 around the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) and the procedure for the registration of cancellation of ownership transfer as to the real estate listed in paragraph (5) of the attached Table No. 1, 3, 4, and 6 of the attached Table No. 1997 as to the real estate listed in paragraph (2) of the attached Table No. 1, 3, 4, and 197 as to the Incheon District Court Decision No. 22615, Jul. 2, 1997; and (c) the procedure for the registration of cancellation of ownership transfer as to each real estate listed in the attached Table No. 7381, Feb. 2, 2016; and (d) the Defendant paid the Plaintiff the claim to the Plaintiff at the rate of 500 million won and its duplicate.

Counterclaim: The plaintiff delivers the real estate listed in the separate sheet Nos. 1 through 4, 6 to the defendant, and primarily 613,030,000 won, preliminaryly 71,732,000 won) and the amount calculated by the rate of 15% per annum from the day following the delivery of a copy of the application for modification of the claim for the counterclaim of this case to the day of full payment. The plaintiff pays the amount calculated by the rate of 1,548,00 won per month from May 18, 2017 to the day of completion of delivery of each of the above real estate.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the main lawsuit of the judgment of the court of first instance shall be revoked. The defendant shall implement the procedure for the registration of ownership transfer primarily for the recovery of real estate listed in the separate sheet to the plaintiff, and shall execute the procedure for the registration of ownership transfer as a result of the transfer of the right of the mandatary on September 22, 2016, and shall pay to the plaintiff 300 million won and the amount calculated at the rate of 15% per annum from the day after the delivery of the copy of the complaint of this case to the day of full payment.

B. Defendant

The part against the defendant in the main lawsuit of the judgment of the court of first instance regarding the part against the defendant shall be revoked, and all of the plaintiff's claims corresponding to that part shall be dismissed. The plaintiff shall deliver each real estate listed in the attached list to the defendant, shall pay to the defendant 613,030,000 won with interest calculated at the rate of 15% per annum from the following day of delivery of a copy of the application for modification of the purport of the counterclaim of this case to the day of complete payment, and shall pay the money calculated at the rate of 1,548,00 won per month from May 18, 2017 to the day of completion of delivery of each real estate listed in

Reasons

1. Basic facts

A principal lawsuit and a counterclaim shall be deemed simultaneously.

(a) Acquisition of the site for tugboat distribution;

1) On March 192, 192, the Defendant leased a building located in Seocheon-si C, and opened Diplomatic Association at all times, joined the E Religious Organization Flag, and thereafter joined the E Religious Organization Flag.

2) On March 8, 1997, the Defendant purchased 200 million won in the purchase price of 600 million won for the purpose of using the land as the land for wedding, Kimpo-gun, Kimpo-gun, Kimpo-gun (hereinafter “G land”) and completed the registration of ownership transfer under the name of the Defendant under No. 22615, which was received on July 2, 1997 from the Incheon District Court Branch Branch Kimpo-dong, Kimpo-si, 1997. The Defendant was granted a loan of 300 million won from H association to purchase the said land as security, and completed the registration of ownership transfer under the name of the Defendant. The Defendant completed the registration of establishment of a mortgage with the debtor as to the said land.

3) On December 1, 1997, the Defendant sold G land of KRW 721 square meters to I in KRW 350 million. On March 31, 1998, the Defendant divided G land into G land of KRW 721 square meters and J 1,412 square meters, and completed the registration of transfer of ownership on April 6, 1998 with respect to KRW 721 square meters in G 721 square meters. Thereafter, on April 1, 1998, the registration of transfer of ownership was completed on April 1, 1998 with respect to KRW 1,412 square meters in Jpo-si, Kimpo-si, Kimpo-si, and 1,412 square meters (hereinafter “former land”).

(b) Construction of a tugboat distribution building;

1) On May 13, 200, the Defendant obtained a building permit from the Kimpo-market and constructed a building listed in the attached Table No. 2 (hereinafter “instant building”) on the land before the instant partition, and completed the registration of ownership preservation in the future of the Defendant on May 8, 2001.

2) On May 30, 2001, the Defendant completed the registration of the establishment of a neighboring mortgage in the name of H association, which was completed with respect to the land and the building of this case prior to the division, with the maximum debt amount of KRW 660 million in the future, and the debtor as the defendant. On the same day, the registration of the establishment of a neighboring mortgage in the name of H association, which was completed with respect to the land prior to the division, was revoked.

3) On June 9, 2001, the Defendant, in the instant building, carried out the business of establishing the Plaintiff church. On September 2001, the Defendant requested that the name of the church be changed from the “Diplomatic Association” to the “Allied Association, the name of the Plaintiff church as of the date of the Plaintiff church,” and thereafter, continued the Plaintiff church as a member of the Plaintiff church.

C. Changes in the cadastral records and legal relationships of the land before the instant partition

1) On June 14, 2001, the land prior to the instant subdivision was divided into the 983 square meters in Kimpo-si, Kimpo-si, Kimpo-si, M 373 square meters in size, and N 56 square meters in size (hereinafter referred to as “the land after the instant subdivision”) (hereinafter referred to as “the land after the instant subdivision”).

2) After the division of this case on June 28, 2002, the Defendant completed the registration of the establishment of a mortgage on the land and the building of this case with the maximum debt amount of 882 million won in the O association, and the establishment of a mortgage on the land and the building of this case with the Plaintiff church. On the same day, the registration of the establishment of a mortgage on the land of this case and the building of this case was cancelled after the division.

3) After the division of this case on March 25, 2005, the Defendant completed the registration of the establishment of a mortgage over the land and the building of this case with the maximum debt amount of KRW 910 million in the future, and the establishment of a mortgage over the land and the building of this case with the Plaintiff church. On June 28, 2005, the registration of the establishment of a mortgage over the land in the name of the O association was cancelled.

4) After the division of the instant case on June 26, 2012, the Defendant completed the registration of the establishment of a neighboring mortgage under the name of the P Association as the Plaintiff church, and the registration of the establishment of a neighboring mortgage under the name of the P Association was revoked on July 3, 2012. After the division of the instant land on March 18, 2013, the registration of the establishment of a neighboring mortgage under the name of the P Association was revoked. On March 18, 2013, the registration of the establishment of a neighboring mortgage was revoked.

5) After the division of the instant land on April 9, 2013, the Defendant completed the registration of creation of a neighboring mortgage with respect to the instant building, Kim Jong-si, Kimpo-si, 983 square meters, and the instant building, the maximum debt amount of which is KRW 780 million, and the Plaintiff church.

6) On August 21, 2014, the land category of K 983 square meters and M 373 square meters in Kimpo-si was changed into a religious site, and each land listed in the attached Tables 1 and 3 was changed into a religious site.

7) On April 12, 2013 and August 21, 2014, the 56 square meters in Npo-si in Kimpo-si were 11 square meters in Npo-si and 45 square meters in Npo-si. The 11 square meters in Npo-si was divided into each land listed in Tables 4 and 6 of the annexed Table on July 13, 2016.

(d) Acquisition of real estate listed in Attachment List No. 5

1) Meanwhile, the building of this case and the site thereof, each of the lands listed in the attached Tables 1, 3, 4, and 6 and the land and the 45m2 of the RP, Kimpo-si were incorporated into the SP. On April 5, 2013, the Korea Land and Housing Corporation and the Defendant maintained each of the lands listed in the attached Tables 1, 3, 4, and 6 among the instant building and the site thereof, and entered into an agreement with the Korea Land and Housing Corporation to be provided with real estate listed in the attached Table 5 from the Korea Land and Housing Corporation.

2) Accordingly, on February 2, 2016, the Defendant completed the registration of ownership transfer based on sale on April 5, 2013 with respect to the real estate stated in paragraph (5) of the attached Table No. 5, and the Korea Land and Housing Corporation completed the registration of ownership transfer based on consultation on April 5, 2013 with respect to 45 square meters on the Kimpo-si Road on April 17, 2013.

E. The defendant's loss of the position of a standing tree

1) On October 2015, when the Defendant was in office as a member of the Plaintiff church, it was difficult for the Defendant to keep a specific part of the body of the credit limit to be known to the members and to continue to carry out the duties of the member of the Council. Accordingly, on June 8, 2016, the Defendant requested on the sending of a temporary president to the FEU.

2) Upon commencement of the FEU’s trial on the disciplinary authority against the Defendant, the Defendant declared the withdrawal from E Religious Organizations and FEUs’ conference on July 6, 2016, and on September 22, 2016, the Plaintiff church demanded the delivery of the said real estate and the payment of unjust enrichment equivalent to the pertinent fees on the ground that the pertinent land and the instant building are owned by the Defendant.

3) On September 22, 2016, the FAO rendered a judgment that the Defendant dismissed the Defendant from office as a pastor and dismissed the Defendant from office on the ground that the Defendant damaged the dignity of pastors, did not reflect his or her mistake, and refused this Trade Union’s competence and pathy.

[Ground of recognition] Facts without dispute, Gap's statements, Gap's 1 through 7, 10 through 13, 24 through 35, Eul's statements, 1 through 6, 9, and the purport of the whole pleadings

2. Whether the part of each claim for cancellation of ownership transfer registration in the principal lawsuit is legitimate;

A. The plaintiff's assertion

The Plaintiff church intended to purchase G land to transfer the church. The category of the above land falls under farmland and was unable to obtain the qualification certificate for acquisition of farmland under the name of the Plaintiff church. Accordingly, the Plaintiff church purchased the above land from the Defendant, a seller, on the ground that it was the buyer, and completed the registration of ownership transfer under the name of the Defendant on July 2, 1997, and even AB was aware of the title trust agreement (so-called seller’s malicious title trust). Therefore, the registration of ownership transfer under the name of the Defendant on G land is null and void pursuant to Article 4 of the Act on the Registration of Real Estate under Actual Titleholder’s Name. Accordingly, the registration of ownership transfer under the name of the Defendant on the above land is null and void pursuant to Article 1, 3, 4, and 6 of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the registration of ownership transfer under the name of the Defendant on real estate exchanged with the land divided from the above land, and the registration of ownership transfer under the name of the Defendant on the above land is also null and void.

B. Determination

1) Even according to the Plaintiff church’s assertion, the title trust agreement between the Plaintiff church and the Defendant with respect to G land is a contractual title trust (the title trustee becomes a party to a contract for real estate and the seller completes the registration of ownership transfer in the name of the trustee), and the Plaintiff church, a title truster, did not have any contractual relationship with AB with respect to G land. Therefore, the Plaintiff church cannot have a right to claim the registration of ownership transfer under the sales contract against AB, barring any other special circumstances. Therefore, there is no preserved claim to subrogate AB.

2) Whether a creditor’s right (right to preserve) exists in a creditor’s subrogation lawsuit is subject to ex officio investigation by the court as a litigation requirement (see, e.g., Supreme Court Decision 2009Da3234, Apr. 23, 2009). Since the Plaintiff church’s preserved claim is not recognized, the part on the claim for cancellation of each ownership transfer registration regarding real estate stated in the [Attachment List 1, 3, and 6] among the principal lawsuit in the instant case is unlawful.

3. Determination on the remaining claims

A. The parties' assertion

1) Plaintiff

A) On May 30, 2001, the Plaintiff church is the same church only with the name of the Diplomatic Association. On the other hand, on the part of the members, the Plaintiff church built the instant building with the money that it received as a loan from L as a security on the land, etc. before the division, which is in fact owned by the Plaintiff church, as the title trustee of the Plaintiff church or the person entrusted with the Plaintiff church, and thus, the Plaintiff church acquired the instant building at once and entrusted the title of the ownership of the instant building to the Defendant, who is the title of the said title. Accordingly, the Defendant is liable to implement the registration procedure for ownership transfer on the ground of the restoration of the real name with respect to the instant building

B) On March 2, 1992, the Plaintiff church joined the E Religious Organization Flag (hereinafter referred to as the “Flag”) and, at the same time, entrusted the Flag to the Flag to handle the affairs necessary for gathering the members. At that time, the Flag delegated the affairs necessary for holding the members of the Plaintiff church to the Defendant, and the Defendant acquired the ownership of each real estate listed in the separate sheet for the Plaintiff church, which is delegated to the duties of the mandatory, in the name of the principal, for the Plaintiff church. On September 22, 2016, the Flag removed the Defendant from the Defendant’s post and removed the Defendant from the Defendant’s post, thereby terminating the delegation relationship between the Plaintiff church and the Defendant. Accordingly, in accordance with Article 684(2) of the Civil Act, the Defendant is obligated to implement the registration procedure for transfer of ownership on each real estate listed in the separate sheet to the Plaintiff church on September 22, 2016.

C) The defendant, without the permission of the plaintiff church, created an installment savings of KRW 30 million each month from the bank account under the name of the defendant, in which the money of the plaintiff church is deposited from July 2012 to January 29, 2015, and embezzled the money by failing to return it to the plaintiff church; ② voluntarily withdrawing KRW 270 million from the bank account under the name of the plaintiff church on May 16, 2013 to embezzlement it; ③ arbitrarily withdrawing KRW 380 million from the defendant Tbank account under the name of the defendant's church to purchase money; ④ arbitrarily withdrawing KRW 300 million from the defendant's account under the name of the defendant's church to the other Tbank account under the name of the defendant; ④ arbitrarily withdrawing KRW 300 million from the defendant's account under the name of the plaintiff church to pay KRW 160 million to the plaintiff church, and ④ arbitrarily withdrawing it from the defendant's account under the name of the plaintiff church to the defendant's 160 million.

2) Defendant

A) When the Defendant closed the Plaintiff church and established the Plaintiff church, the name of the D church that was already admitted to the Plaintiff church instead of joining the Plaintiff church for convenience is a separate church between D church and the Plaintiff church. The instant building was newly built of KRW 300 million borrowed from the Defendant or AC for the purpose of operating the Plaintiff church, and KRW 100 million that the Defendant borrowed from the Defendant’s land before the instant subdivision, etc. on May 30, 201. The land before the instant subdivision is the land owned by the Defendant, which was purchased from the Defendant’s own company, mother, and the Plaintiff’s funds borrowed from the Plaintiff church to the Plaintiff church as a collateral.

B) The Defendant received KRW 80,00,000 per month from the Plaintiff church, ② KRW 270,000,000 won for the admission of the company house, ③ KRW 38,000,000 for the purchase of the vehicle. Meanwhile, the Defendant’s wife paid KRW 100,000 for the construction of the Plaintiff church on April 15, 2016, and upon the Plaintiff church’s construction, the Plaintiff’s wife returned the said KRW 100,000 to U on May 21, 2016 with the consent of all the Plaintiff church members. ⑤ On June 30, 2016, the Defendant had a loan claim of KRW 100,000 for the Plaintiff church with the Defendant’s loan claim of KRW 100,000,000 for the Plaintiff church and received the said loan by cancelling the Plaintiff church’s name on July 6, 2016.

B. As to the claim for ownership transfer registration based on the restoration of the true name

1) Whether the identity of the Diplomatic Association and the Plaintiff church is recognized

A) First of all, we examine whether Diplomatic Association and the Plaintiff church are the same church. The defendant, who was a member of D church, established the Plaintiff church on June 9, 2001 and was employed as a member of the Plaintiff church until 2016, and the defendant applied for the change of the name of the church from Diplomatic Association to the Plaintiff church on the ground of the "transfer and resumption of the FEU, which is a member of D church," and the fact that the Plaintiff church registered with the FEU is as mentioned above. According to each of the statements in the evidence Nos. 40, 41, 46, and 52, it is recognized that AG, AH, and AI, etc., who were members of Diplomatic Association, transferred the name of the church to the Plaintiff church with the defendant.

B) However, in light of the following circumstances, which can be recognized by comprehensively considering the overall purport of arguments in the statements in Eul evidence Nos. 4 and 13 through 15, the dividends of the D church were in the time of fathercheon, the buildings of this case, which are the regular dividends of the plaintiff church, are in the time of Kim Jong-si, the D church and the plaintiff church hold different articles of association, there is no evidence to support that not less than 2/3 of the members of the D church have resolved the transfer of the D church to Kim Jong-si, the majority of the members of the D church have moved to the plaintiff church, or there is no evidence to support that the establishment of the plaintiff church was separately carried out on June 9, 201, and that the date of this year was anniversary of the establishment of the plaintiff church, it seems that the defendant newly established the plaintiff church by dividing the building of this case as the preliminary dividends, and changed the name of the plaintiff church to the plaintiff church that was enrolled in the F Council instead of joining the plaintiff church for convenience.

2) Sources of the instant building construction fund

A) As to loans that received as security the land before the instant partition

(1) On May 30, 2001, the Defendant set up a right to collateral security prior to the instant partition and set up a loan of KRW 660 million with the maximum debt amount on the instant building, and set up a part of the newly constructed cost of the instant building with the loan. There is no dispute between the parties.

(2) The Plaintiff asserted that the Defendant purchased G land with the money of the Plaintiff church members with the donation of the Plaintiff church members, and the remainder was appropriated with the loan of the above land as collateral, and eventually, the Defendant acquired G land with the money of the Plaintiff church. However, each of the entries in the evidence Nos. 26, 36, 40, 49 through 51, and 52 is insufficient to recognize that the Defendant purchased G land with the money of the Plaintiff church members, and there is no other evidence to recognize it. Rather, according to each of the statements in the evidence Nos. 26 through 30, the Defendant raised G land purchase fund with the money of the company house deposit and the borrowed money received from the Plaintiff.

Furthermore, as seen earlier, the Plaintiff church was established as a separate church from the D church on June 9, 2001, and therefore, even if the Defendant purchased G land with the donation of D church, it cannot be deemed that the said land is actually owned by the Plaintiff church.

Therefore, the plaintiff's assertion that the loans that the defendant received before the division of this case as collateral are actually the funds of the plaintiff church is without merit.

B) As to other funds

The plaintiff asserted that the unconstitutionality paid by the members of the D Teaching Association was used for the construction of the building in this case, but it is not sufficient to recognize only the statement of No. 40, and there is no other evidence to acknowledge it.

3) Determination

A) The registration of initial ownership of a building is presumed to be a valid registration in accordance with the substantive legal relationship, and there is no proof as to facts that may reverse the presumption of initial ownership preservation, such as the construction of a new building by a person other than the registrant, etc., the registrant himself/herself shall be deemed to have lawfully acquired ownership (see Supreme Court Decision 2014Da70139, Jan. 29, 2015). Meanwhile, a claim for registration of initial ownership transfer for the restoration of a real name is registered under his/her own name, or the real owner who acquired ownership by law seeks to implement the procedure for registration of ownership transfer for the restoration of a real name against the current titleholder based on the ownership by means of restoring the real name of registration (see Supreme Court Decision 200Da36484, Aug. 21, 2001).

B) On May 8, 2001, the Defendant: (a) completed the registration of initial ownership on the instant building under its name; (b) it is presumed that the ownership of the instant building was legally acquired; and (c) in order to reverse this, the Plaintiff church asserted and prove that the Plaintiff church asserted that it had acquired the instant building in its original condition with its funds and effort; (d) as seen earlier, the Plaintiff church cannot be deemed to have newly constructed the instant building for the Plaintiff church that had not yet been established at the time of the construction of the instant building because it was not recognized as the identity of the Plaintiff church; and (e) it is difficult to view that the building was constructed with the funds of the Plaintiff church, and it is difficult to view that the evidence submitted by the Plaintiff was insufficient to recognize facts to reverse the presumption of the registration of initial ownership in the name of the Defendant; and there is no other evidence to acknowledge this. Accordingly, on the premise that the Plaintiff church acquired the instant building in its original condition, the Plaintiff church’s claim for registration of ownership transfer on the ground

C. As to the claim for registration of transfer of ownership based on the transfer of the right by the mandatary

The reasoning for this part of this Court is as follows, except where the plaintiff added the judgment on the assertion added by the trial court, and the corresponding part of the judgment of the court of first instance is the same as that of the corresponding part of the judgment of the court of first instance. As such, this Court cited it as it is in accordance with

After the judgment of the first instance court No. 10 of the first instance court No. 11, "(No. 10), the defendant added "(No. 10 of the real estate of this case cannot be deemed as contrary to the principle of good faith merely because the defendant emphasizes that the defendant's 's 's 's 's 's 's 's 's 's '' will be owned by the members of the D' association, and that the members of the D' association believe that each of the real estate of this case

D. As to the claim for damages caused by a tort

1) Quotation of the first instance judgment

The reasons for this part are as follows, except where the court has added the judgment on the argument added or added in the trial as follows, and therefore, it is identical to the corresponding part of the judgment of the first instance. Thus, this part is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2) Judgment on the Plaintiff’s assertion

The Plaintiff asserts that the minutes of the regular collective meeting (No. 8) in 2015 do not meet the quorum necessary for the joint meeting. Thus, the Defendant cannot be paid KRW 30 million from the Plaintiff church through lawful procedures, but the Defendant’s payment of KRW 38 million for the purchase of vehicles. However, Article 4 of Chapter 20 of the Assembly Constitution of E religious Organizations (No. 24) accompanied by the Plaintiff church does not justify the Plaintiff church’s assertion that “The Joint Council shall open as the date and bill shall be announced to the church before the opening date and the bill shall be opened, but if the number of the meetings is too small, the chairperson shall have the right to do so and shall re-examine it on another day.” Since the Plaintiff church’s articles of association did not set the quorum for the joint meeting, the contents of the above minutes cannot be denied for reasons of falling short of the quorum for the Plaintiff’s opinion.

3) Judgment on the defendant's assertion

Article 14 (1) of the articles of association of the plaintiff church provides that "acquisition and disposal of the properties of the church and alteration thereof are required to be approved by the joint council," even if the defendant obtained approval of more than 2/3 of the members of the adjudication committee on May 21, 2016 and the loans of 100 million won on July 6, 2016, the defendant legitimately returned the above loans. However, in the church that is an organization of the Germany, the properties of the church belong to the joint ownership of the members of the church (see Supreme Court Decision 2006Da23312, Feb. 12, 2009), barring any special circumstance, the above properties of the church belong to the joint ownership of the members of the church (see Supreme Court Decision 2006Da23312, Feb. 12, 2009). Thus, even if the defendant obtained approval of the above withdrawal money, it cannot be said that they underwent legitimate procedures merely due to such circumstance, and that the defendant received the above contributions to the above church from the defendant.

o Part 16 to 18 of the Judgment of the first instance court shall be added with the following contents:

"Therefore, the defendant is obliged to pay damages for delay calculated at the rate of 200 million won and 15% per annum as stipulated in the Civil Act from September 10, 2016, which is the date of the first instance judgment, which is the date of the decision of the court of first instance, the defendant's delivery of the copy of the complaint of this case to the plaintiff church, to the defendant, to dispute over the existence of the obligation or the scope of the obligation, until October 18, 2017, and to pay damages for delay calculated at the rate of 15% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of

4. Determination on a counterclaim

A. The defendant's assertion (the ground for counterclaim)

1) On June 9, 2001, the Defendant entered into a lease agreement with the Plaintiff church and the Defendant, without a fixed period of time, on each of the real estate stated in the attached Tables 1 through 4, and 6, which are owned by the Defendant, and reserved a claim for rent. The Defendant notified the Plaintiff church of the termination of the said lease agreement on June 29, 2016, and the above lease agreement was terminated on December 29, 2016. If the Plaintiff and the Defendant cannot be deemed to have entered into a lease agreement on the real estate, the said lease agreement was concluded if the agreement on the said real estate was concluded between the Plaintiff and the Defendant, and the said loan agreement on the loan was terminated as of June 29, 201 as the duration of the Defendant’s membership in the Plaintiff church. Even if the term of the said loan agreement was not determined, even if the Defendant’s termination of the lease agreement was not determined, the agreement was terminated as of June 29, 2016.

2) Nevertheless, the Plaintiff church uses the above real estate as a wedding up to the date, and asserts that the above real estate is owned by the Plaintiff church and expresses its intention to use the above real estate in the future. Therefore, the Plaintiff is obligated to deliver the above real estate to the Defendant, and ② to pay unjust enrichment of KRW 61,30,000,000 in the rent or unjust enrichment of KRW 61,732,00,00 in the preliminary return from December 29, 2016 to May 17, 2017, calculated by the ratio of KRW 1,548,00 in the month from May 18, 2017 to the completion date of delivery of the above real estate.

B. Whether a lease contract, etc. is concluded

1) The Defendant concluded a sale contract of G land with AB on March 8, 1997 and completed the registration of ownership transfer under the name of the Defendant on July 2, 1997 with respect to the above land, and the Defendant paid the purchase price of the above land by obtaining a loan of KRW 300 million from H association as security, as seen earlier. Meanwhile, in full view of the overall purport of the pleadings in each of the evidence Nos. 26 through 30, the Defendant appears to have prepared the remaining purchase price of the land with KRW 30 million borrowed from PE and KRW 160 million borrowed from PE, KRW 30 million borrowed from PE, and KRW 30 million borrowed from AE, and the above loan amount is deemed to have been partially repaid to I with KRW 350 million,000,000,000,0000,0000, and it is insufficient to view that each of the separate statements No. 36,40,49,51, and 52, as divided from each of the Defendants 1 and 4.

2) Meanwhile, the ownership of the instant building is as seen earlier, and the fact that the Plaintiff church uses each of the instant building and the land listed in the attached Tables 1, 3, 4, and 6 (hereinafter collectively referred to as the “instant building, etc.”) as a tugboat site, access road, parking lot, etc. is not disputed between the parties or recognized as the result of the appraisal by the appraiser AK of the first instance trial.

3) On June 9, 2001, the Defendant asserted that the Plaintiff entered into a lease agreement with the Plaintiff church without a fixed period of time and reserved the claim for rent, but there is no evidence to acknowledge it. Rather, in light of the overall purport of pleadings, the following circumstances, i.e., (i) the Defendant opened the Plaintiff church, (ii) the Plaintiff church’s believers used the instant building as a wedding and its affiliated parking lot until then, (iii) the Plaintiff church was established from June 9, 2001 to June 201, 201, and (iv) the Plaintiff church did not request the Defendant to rent for 14 years from the date when the dispute between the Plaintiff church and the Defendant occurred, and (iii) the Defendant did not have any evidence to deem that there was a discussion on the payment of rent between the Defendant church and the Plaintiff church for free at the early stage of the establishment of the Plaintiff church, and (iv) there is no evidence to deem that the Defendant offered economic interest between the Plaintiff church and the Defendant, including the interest on the Plaintiff church that it had not been established.

4) Therefore, the Defendant’s assertion on the termination of the lease agreement for the instant building and the termination of the loan for use on the ground of expiration of the period of validity is without merit.

1) Relevant legal principles

According to Article 613(2) of the Civil Act, if the duration of a loan for use is not determined, the borrower shall return the object at the time when use or profit-making under the nature of the contract or the object is completed, but even if use or profit-making has not been completed in reality, the lender may terminate the contract at any time and claim the return of the object of loan when the sufficient period for use or profit-making has elapsed. Whether the sufficient period for use or profit-making has expired or not shall be determined on the basis of whether it is reasonable to recognize the right to terminate the contract to the lender from the equitable standpoint, comprehensively taking into account the circumstances at the time of the loan for use contract, the borrower’s period of use and use, and the circumstances that the lender needs to return (see Supreme Court Decision 200

2) Determination

In light of the following circumstances, it is reasonable to view that the Plaintiff church had passed sufficient time to use and benefit from the building, etc. of this case in light of the overall purport of the pleadings as seen earlier, and therefore, the right to terminate is recognized from the perspective of fairness. Thus, it is reasonable to view that the Defendant demanded the transfer of the building of this case to the Defendant, and that the loan contract for use of the building of this case was terminated implicitly from December 29, 2016, when the Plaintiff filed a suit against the Defendant against the Defendant and the trust relationship between both parties was disappeared.

① On June 9, 2001, the Defendant opened the Plaintiff church and lent the instant building, etc. to the Plaintiff church as a member of the Plaintiff church without setting a deadline, and established a loan for use. The Plaintiff church thereafter used the instant building, etc. for about 15 years from June 29, 201, which requested the Plaintiff church to transfer the instant building, etc.

② Around June 8, 2016, the Defendant requested the FAO to send the Plaintiff church credits to the FAO’s temporary president. On September 22, 2016, the Defendant was no longer able to perform the Plaintiff church’s temporary membership in the office of a member of the Plaintiff church after being subject to a disposition of removal from office and withdrawal from office from the FAO’s association on September 22, 2016. Accordingly, the Defendant changed the basis of trust between the Plaintiff church and the Defendant.

③ On June 29, 2016, the Defendant demanded the Plaintiff church to deliver and rent the instant building, etc. The Plaintiff church asserted the original acquisition of the instant building, etc. on August 18, 2016, and filed the instant lawsuit against the Defendant. The Defendant filed a counterclaim and continued to dispute until the first instance is over the dispute. Therefore, it is reasonable to deem that the mutual trust and friendship relationship between both parties was completely dismissed.

④ The Plaintiff church appears to be able to continue the worship by concluding a lease agreement with the Defendant or finding another way to secure a new building to be used as a dividend, etc., and the mere fact that the Plaintiff church failed to secure a space for the worship, the Defendant’s exercise of ownership cannot be restricted.

D. Fraudulent gains from occupying the building, etc. of this case

According to the appraisal by the appraiser AK of the first instance trial, the rent of the instant building, etc. from December 29, 2016 to May 17, 2017 is KRW 71,723,00 (=annual rent of KRW 185,758,700 + 4/12 + annual rent of KRW 4/12 + 185,758,700 + 1/12 ¡¿ 9/30, and under KRW 9/30]; and the monthly rent of the instant building from December 29, 2016 to May 17, 2017 is acknowledged to have been below KRW 15,480,00 (annual rent of KRW 185,758,700 ¡À12,500,000). According to the fact that the instant rent is confirmed after October 18, 2017.

E. Sub-committee

Therefore, since the loan contract for the use of the instant building was terminated, the Plaintiff church delivered the instant building, etc. to the Defendant, the owner of the instant building, etc.: (2) The Plaintiff church, as a result of the termination date, is obliged to deliver the instant building, etc.; (3) the Plaintiff’s claim for restitution of unjust enrichment equivalent to the rent of KRW 71,723,00 from December 29, 2016 to May 17, 2017, following the delivery date of the duplicate of the application for the alteration of the claim for the instant counterclaim, which is the date of June 21, 2017 to June 18, 2019, which is deemed reasonable to dispute the existence or scope of the Plaintiff’s obligation to perform; and (4) the Plaintiff’s claim for restitution of unjust enrichment from June 18, 2019 to the date of complete payment; and (5) the Plaintiff has no obligation to deliver the instant building, etc. to the Plaintiff, and thus, it is necessary to pay the Plaintiff’s claim for restitution of unjust enrichment from 108.

5. Conclusion

Therefore, all of the claims for cancellation of registration in the principal lawsuit of this case are dismissed as unlawful. The remaining claims of the plaintiff and the counterclaim of the defendant shall be accepted within the scope of the above recognition, and all of the remainder shall be dismissed as it is without merit. The judgment of the court of first instance shall be dismissed as it is so decided as per Disposition by the court of first instance, including the plaintiff's main lawsuit as modified and the defendant's counterclaim claims, since the judgment of the court of first instance is partially unfair.