Plaintiff 1 and one other (Attorney Han-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Ba-il, Counsel for the defendant-appellant)

June 27, 2012

Busan District Court Decision 2010Kadan27544 Decided February 16, 2012

1.The judgment of the first instance shall be modified as follows:

A. The defendant

1) From December 21, 2009 to December 21, 2009 to the day when Plaintiff 1 loses ownership of the land listed in the attached Table No. 1 by Plaintiff 1 or the Defendant loses ownership of the building listed in the attached Table No. 3 of the attached Table No. 19,333 won per month;

2) From December 21, 2009 to December 21, 2009 to the day when Plaintiff 2 loses ownership of the land listed in Annex 2 attached hereto or the Defendant loses ownership of the building listed in Annex 3 attached hereto, money in proportion to KRW 1,828 per month to the day when Plaintiff 2 loses ownership of the building.

sub-payment.

B. The plaintiffs' remaining claims against the defendant are dismissed.

2. 7/10 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

3. The part concerning the payment of money under paragraph (1) of this Article may be provisionally executed.

1. Purport of claim

Defendant:

A. Plaintiff 1:

(1) remove a building on the ground (iv) section 80 square meters connected in order to each point of Annex 5, 6, 7, 8, 22, 23, 24, and 5, among the buildings listed in Annex 3 of the attached list;

(ii) the delivery of the land described in paragraph 1 of the same list; and

3) Payment of an amount in proportion to KRW 19,333 per month from December 21, 2009 to the completion date of delivery of the above land;

B. Plaintiff 2:

1) remove a building on the part (b) of 11 square meter in the ship connecting each point of the attached sheet No. 1, 2, 3, 4, 24, 23, 22, and 1 among the buildings listed in paragraph 3 of the attached list, in sequence;

(ii) the delivery of the land described in paragraph 2 of the same Schedule;

3) From December 21, 2009 to the completion date of delivery of the above land, the amount shall be paid at the rate of KRW 1,828 per month.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

A. The registration of ownership transfer was completed on February 1, 2005 with respect to the land listed in paragraph (1) of the Attached List No. 1 (hereinafter “instant land”) owned by Nonparty 1 on Non-Party 2 on November 30, 2005, and Plaintiff 1 on November 30, 2005. In addition, the registration of ownership transfer was completed on February 25, 200 with respect to the land listed in paragraph (2) of the Attached List No. 2 (hereinafter “instant land”) owned by Non-Party 1 on the land listed in the Attached List No. 1 (hereinafter “each of the instant land”).

B. Meanwhile, on September 16, 1992, a building listed in Paragraph (3) of the same list (hereinafter “instant building”) was registered for preservation of ownership in the name of Nonparty 1, and the Defendant completed the registration of ownership transfer on August 28, 2007 due to the sale in the procedure for compulsory auction of real estate (the 17th day of the same month).

C. The instant building is constructed on both sides of the land (b) part of the attached drawing indicating 5, 6, 7, 8, 22, 23, 24, and 5 among the land in the instant case and on both sides of the same map among the land in the instant case, which connects each point of 1, 2, 3, 4, 24, 23, 22, and 1,000 square meters and 1,000 square meters among the land in the instant case.

D. Since August 17, 2007, the rent for the land of this case was KRW 20,000 from KRW 19,333 per month, and the rent for the land of this case was KRW 1,833 per month and KRW 1,906 per month from KRW 1,833 ( note 1) per month.

[Based on recognition] Evidence No. 1-1, 2, Evidence No. 2, Evidence No. 2 of the first instance court, but each entrustment to appraisal corporations and branches of the senior group of the Korea Cadastral Corporation for appraisal, the purport of the whole pleadings

2. Determination as to removal of buildings and requests for delivery of sites

(a) removal of buildings and requests for delivery of sites;

In the absence of special circumstances, the Defendant is obligated to remove the building on the ground section above (d) to Plaintiff 1, the owner of the land of this case, and deliver the land of this case to Plaintiff 2, the owner of the land of this case, and to remove the building on the ground section above (b) and deliver the land of this case to Plaintiff 2.

B. Judgment on the defendant's defense

1) Determination on the defenses to acquire legal superficies under customary law

The defendant is the actual owner who held the title trust of each of the lands of this case with the plaintiffs, and the building of this case was owned by the non-party 1. The defendant acquired ownership in the auction procedure and the owner of each of the lands and buildings of this case changed. Thus, the defendant asserted that he acquired legal superficies under the customary law for the ownership of the building of this case.

In a case where a trust was made to a third party with the title of ownership of the site, the truster cannot assert that the site is one’s own ownership, so it cannot acquire legal superficies on the premise that the site and its ground buildings are owned by the same person (see, e.g., Supreme Court Decision 2006Da45008, Dec. 7, 2006). Even if Nonparty 1 trusted each of the instant lands to the plaintiffs, the truster, even if Nonparty 1 held a title trust with the plaintiffs, does not constitute the case where Nonparty 1, a truster, could not assert that the relevant land is owned by the same person, and thus, it does not belong to the same person’s ownership. Thus, the defendant cannot acquire legal superficies under customary law on the premise that each of the instant lands and buildings are owned by the same person. Therefore, the defendant

2) Determination on the violation of the good faith principle

A) The defendant's defense

Since the defendant is in the position to seek the execution of the procedure for the registration of legal superficies and the registration of transfer under the customary law in sequential order against the non-party 1 and the plaintiffs in accordance with the creditor subrogation doctrine, the plaintiffs' claim against such defendant for removal of a building based on ownership is justified and it is not permissible in light of the principle of trust and good faith because the person who is obligated to take the procedure for the registration of creation has filed a claim against

B) Relevant legal principles

A successful bidder who takes over the ownership of a building by auction from a person who acquired legal superficies to own the building shall naturally acquire the superficies along with the successful bidder of the building unless there are special circumstances, such as where the ownership of the building is sold at auction after the successful bid under the conditions of sale such as removal of the building (see Supreme Court Decision 84Meu1578, 1579, Feb. 26, 1985). In addition, in a case where the owner of the building who acquired legal superficies transfers the building without completing the registration of the creation of legal superficies, it shall be deemed that there was an obligatory contract to transfer the superficies along with the building unless there are special circumstances (see Supreme Court Decision 87Meu279, Sept. 27, 198, etc.). Since a person who takes over the legal superficies from the owner of the building who acquired the legal superficies and wants to take over the legal superficies from the owner of the building, he can seek implementation of the registration of the creation of the superficies and the registration procedure for transfer thereof in sequence to the owner of the building (see Supreme Court Decision 20257Da57.

C) In the instant case:

As seen earlier, all of the instant lands and the instant buildings were owned by Nonparty 1. On February 1, 2005, the land of this case was transferred to Nonparty 2, and on February 25, 2000, the land of this case was transferred to Nonparty 2, and on February 25, 2000, the land of this case was changed to the owner of land and buildings due to Plaintiff 2’s transfer of ownership in the future. Accordingly, Nonparty 1, who was the owner of the instant building at each time, acquired legal superficies under the customary law for the possession of the instant building as to each of the instant land, and the Defendant was awarded a successful bid for the instant building owned by Nonparty 1 in the process of compulsory auction and completed the registration of ownership transfer, and it is not recognized that the Defendant concluded a special agreement, such as the removal of the building, etc. by the Defendant.

Therefore, the defendant is also deemed to have received legal superficies under the customary law for the purpose of owning the building of this case together with the building of this case. Thus, the defendant is in a position to seek the implementation of the procedure for creation registration of superficies against the plaintiffs, and the removal of the building of this case and seeking the transfer of land against such defendant cannot be permitted under the principle of good faith. Therefore, the defendant's defense is justified and the plaintiffs' assertion is without merit.

C. Sub-committee

Thus, the plaintiffs cannot seek removal of the building of this case and delivery of the site against the defendant.

3. Determination as to the claim of unjust enrichment equivalent to rent

Even if legal superficies under common law are legal superficies, land is paid to land owners, barring special circumstances, barring special circumstances, and even if a transferee of a building with legal superficies is in the position to refuse the removal of a building or the request for the delivery of a site in the position to acquire legal superficies, the actual gains from the occupancy and use of the site are unjust gains, so long as it causes damage to the land owner, it shall be returned to the land owner as unjust gains. Unless there are special circumstances, the owner of a building without authority on the land owned by another person shall personally obtain profits equivalent to the rent of the land from another's property without legal grounds and thereby causes damage to the other person (see Supreme Court Decision 94Da6144 delivered on September 15, 1995).

Therefore, from December 21, 2009 (the date of the move-in report by the defendant to the address of the land No. 1), the defendant is obligated to pay to the plaintiff 1 unjust enrichment equivalent to the rent of 19,33 won per month sought by the above plaintiff within the scope of the rent for the land No. 1 from the day when the above plaintiff lost ownership of the land of this case or the defendant lost ownership of the building of this case until the day when he loses ownership of the building of this case, and from December 21, 2009 to the day when the above plaintiff 2 loses ownership of the land No. 2 of this case from December 21, 2009 to the day when the above plaintiff lost ownership of the land of this case or the defendant loses ownership of the building of this case, the above plaintiff 2 is obligated to pay unjust enrichment equivalent to the rent of 1,828 won per month, which the above plaintiff seeks within the scope

4. Conclusion

Therefore, the plaintiffs' claim of this case against the defendant is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, part of the defendant's appeal is accepted and the judgment of the court of first instance is modified as above.

[Attachment]

Judges Lee Jong-soo (Presiding Judge)

1) Although the court of first instance (ju), the rent for the part occupied by the defendant in possession of each of the instant land according to the result of a commission of appraisal by an appraisal corporation is calculated on the premise that the area of the instant land No. 1 is 72 square meters, and the area of the instant land No. 2 is 8 square meters. Therefore, it would lead to such conclusion if the rent is calculated on the basis of each area of the instant land according to the result of a commission of appraisal by the court of first instance for