(영문) 서울고등법원 2010.1.14.선고 2009나62365 판결

1. Of the judgment of the court of first instance, the part against the Defendant (Counterclaim Plaintiff) regarding the principal lawsuit shall be revoked and the revoked part shall be revoked.

The plaintiff (Counterclaim defendant)'s main claim is dismissed.

2. Of the judgment of the court of first instance, the defendant who falls under the following amount:

(1) The part against which the plaintiff lost shall be revoked.

Plaintiff (Counterclaim Defendant) is the Plaintiff (Counterclaim Plaintiff) with a gold of five million won from June 2, 2009 to the Defendant (Counterclaim Plaintiff).

Until January 14, 2010, 5% per annum and 20% per annum from the next day to the day of full payment.

D. The sum of the calculated amounts is paid.

3. The defendant (Counterclaim Plaintiff)'s remaining appeal is dismissed.

4. The total costs of the lawsuit are 3/4 of the total costs of the principal lawsuit and the counterclaim, and 1/4 of the plaintiff (the counterclaim defendant), and 1/4 of the defendant (the counterclaim defendant).

Plaintiff) each bears the burden of each Party.

5.The portion of the payment under paragraph 2 above may be provisionally executed.

Purport of claim and appeal

Purport of claim

In the principal lawsuit: Defendant (only hereinafter “Defendant”) is the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”).

한다 ) 에게 별지 목록 기재 건물 중 별지 도면 표시 ㄱ , ㄴ , ㄷ , ㅂ , ㅅ , ㅇ , ㅈ , ㅊ , ㅋ ,

T. ① Part 60.48m2, indication of the same drawings, c. 3, 4, 5, 66m2, connected in sequence with each point;

(2) The judgment ordering the delivery of part 2.53 meters on the ship which connects each point in order.

Counterclaim: The plaintiff served on the defendant a gold of five million won and a copy of the counterclaim of this case.

5% per annum from the following day to the date of pronouncement of the first instance judgment, and 20% per annum from the next day to the date of full payment.

The judgment ordering the payment of the amount calculated at each of the above ratios.

Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed and the same as the plaintiff's claim for the counterclaim is stated.

the court below's judgment.

Reasons

1. Basic facts

The following facts do not conflict between the parties, or evidence A Nos. 1, 2, 3, and 2

- 11, Gap evidence 3-5, Gap evidence 5, Eul evidence 1 through 5, and Eul evidence 12 are the whole pleadings.

In full view of the purport, it can be recognized.

A. Nonparty 1: (a) around March 1, 2002, Nonparty 2 and six (6) members of Jung-gu Seoul, Jung-gu, Seoul, with Mackdong.

285 - The size of five floors above ground consisting of two households of each of the second and fifth floors, and two units of housing, on the parcels outside 25 and five stories;

A contract for construction works that will newly construct a multi-household house in the amount of 48 million won (hereinafter referred to as “multi-household house”)

When entering into a construction contract of the instant case (hereinafter referred to as “the instant construction contract”), the said party is outside the country to contribute the said land.

for each of the above ○○ KRW 3 million for each of the above ○○ (at the completion of the 1st floor aggregate construction, at the completion of the 5th floor aggregate construction, and the completion of the 5th floor aggregate construction; and

In lieu of paying an amount of KRW 18 million in total at the time of occupancy, within two floors after completion, instead of paying an amount of KRW 18 million in total;

The 4th generation of each household with the 4th generation, and the above 180 million won from the above △△△△△, etc.

The agreement was made to own the 2nd generation of the 5th floor in addition to the receipt of the 5th unit.

B. On April 3, 2002, 2002, the above large-scale ○○ was started and continued to run the above construction work, and during the process of such commencement, the above party ○○○ was the same as the

When the payment of the progress payment was delayed, the payment of the unpaid construction price between the above ▽▽▽△△, etc. on September 17, 2002

In lieu of payment, I will extend the house on the first floor and on the rooftop of the above building and use and benefit therefrom.

After agreement, the construction of the building listed in the attached Table (hereinafter referred to as the "building of this case") is completed as originally designed.

on December 27, 2002, the first floor of the building completed without the permission of the competent authorities after obtaining the approval for the use thereof.

The structure of a house was changed or the house was extended on the rooftop.

C. On March 18, 2003, the instant building is registered as ownership preservation in the joint name of six members, such as the aforesaid ▽▽△△, etc.

immediately after a completion of the registration of division into six separate owners for each household of the second to fourth floors.

Any third party purchased from ○○ with respect to each of the five-story households on the five-story basis.

Each transfer registration for ownership has been made, and on the same day, each household on the site of the building in this case.

1/8 shares of a site have been established.

D. After that, on August 27, 2005, the defendant entered the separate list among the buildings of this case between the above large ○○ on August 27, 2005.

건물 중 별지 도면 표시 ㄱ , ㄴ , ㄷ , ㅂ , ㅅ , ㅇ , ㅈ , ㅊ , ㅋ , ㅌ , 그의 각 점을 순차로

Part 1. Part 60 m2, 48 m2, 3.48 m2, 4.5 m2, 5.6 m2, 3.00 m2 in sequence.

Section 2. Sub-Section 101 of the first floor (hereinafter referred to as "the first floor") equivalent to 53m;

(1) The term of the lease contract (as of September 23, 2005 to September 22, 2007) shall be determined as KRW 7 million, and the period from September 23, 2005 to September 22, 2007.

H. After concluding the instant lease agreement, the said deposit to the ○○○ around that time.

A transfer report was made by making payment and making a move-in report, and it began to reside in the above 101.

E. Meanwhile, on January 26, 2007, the Plaintiff Union had its house resumed on the knives of Jung-gu Seoul, Jung-gu, 45 et al. and 850 parcels.

A project (hereinafter referred to as the "project of this case") is established for the purpose of carrying out the project of this case, and on August 10, 2007.

The head of Ulsan shall have obtained the approval of the redevelopment project from the head of the Gu, and on June 26, 2008, the urban and residential environment maintenance.

(hereinafter referred to as the "Urban Improvement Act") shall be subject to the approval of the management and disposal plan under the provisions of Article 49 of the Act.

section 49(3) of the Act on the Maintenance and Improvement of Urban Areas on the same day.

The notice of this case was made, and the building of this case is located in the improvement zone of the above project, and is in the above management.

It is included in the disposal plan in the previous building subject to the improvement project.

F. Although the lease contract of this case terminated on September 22, 2007 at the expiration of the period, the defendant has up to the date.

Of the above deposit, 5 million won was not returned from ○○○.

2. Parties’ assertion

Plaintiff Union shall be subject to the public notice of approval of the above management and disposition plan pursuant to Article 49(6) of the Urban Improvement Act.

The defendant was unable to use or benefit from subparagraph 101 of this case, and the relocation expenses on June 1, 2009.

Since the defendant agreed to move to the Republic of Korea in the amount of five million won, the plaintiff, who is the project operator, is the plaintiff.

It asserts that the union should deliver 101 of this case to the union and seeks its delivery as the principal lawsuit.

As to this, the defendant, the owner of the building of this case under 101, is the owner of the building of this case.

The Plaintiff leased No. 101 from the ○○○, which granted the right to use and benefit from No. 101.

No one may achieve the purpose of establishing the right of lease as to the above 101 due to the implementation of the partnership’s rearrangement project.

As such, the lease contract is terminated pursuant to Article 44 of the Urban Improvement Act, and the remaining balance is the Plaintiff’s association.

The remainder of the deposit from the Plaintiff Union, which is the project implementer, shall be claimed for the return of the deposit;

Until a refund of KRW 5 million is made, a claim of the Plaintiff Union cannot be complied with, and the defendant is also unable to comply with, the request of the Plaintiff Union.

6. 1. The promise to move is forced by force, such as violence, intimidation, etc. of the members of the Plaintiff Union.

(2) The remainder as a counterclaim shall not be deemed to be a counterclaim.

claim the return of the lease deposit.

3. Determination by issue

A. Appropriateness of a claim for extradition made by the Plaintiff Union

(1) Title of the request for extradition

(A) The question is raised

The Plaintiff’s title to the claim for extradition of this case against the Defendant and Article 49(6) of the Urban Improvement Act

After the management and disposal plan is authorized and publicly announced, land or buildings within the rearrangement zone shall be closed.

The former owner's use of and benefit from the former owner is specified to be suspended. However, the foregoing provision provides that the former owner shall not

the previous owner's use and profit is suspended, and the project operator's interpretation is interpreted.

Pursuant to the management and disposal plan, land or buildings in the rearrangement zone may be used.

Legal basis is, even after it becomes a legal basis (see Supreme Court Decision 91Da22094 delivered on December 22, 1992) and the above provision

Therefore, it is doubtful whether all the occupants can be the legal basis for excluding possession.

(B) Contents of the relevant laws and regulations

The former Act on the Maintenance and Improvement of Urban Areas, which was enforced at the time when the Plaintiff Union obtained approval of the management and disposal plan ( February 2, 2009).

6. According to the above law, it is necessary to recover the urban function.

(b) A planned improvement of areas with poor residential environment and an efficient improvement of old and inferior buildings;

(Article 1), and the redevelopment and maintenance project partnership, such as the Plaintiff’s Union, shall maintain the project;

In implementing the implementation, the public announcement of sale shall be made first after receiving the authorization for project implementation from the competent authority (Article 26).

and after filing an application for parcelling-out, the details of the previous land or buildings for each person eligible for parcelling-out, and the type of the person eligible for parcelling-out

A plan for disposal of rights, including "detaileds of rights other than ownership in land or buildings prior thereto"

(Article 48), and such a management and disposal plan shall be the official use of the local government.

at the time public notice is given to the Secretary, the owner, superficies, lease holder, or lessee of the previous land or building;

A right holder, etc. shall have the previous land or construction until the date of public announcement of transfer under Article 54.

No use of or benefit from water shall be allowed: Provided, That if the concessionaire has obtained the consent, the use of or benefit from water shall be allowed.

section 49(6) provides that "no exception shall be made." (Article 49(6)

However, if the Urban Improvement Act is currently in progress, the management and disposition plan shall contain the contents of the plan.

Details of rights to compensate for losses and their appraised values were added (Article 48(1)7), and Article 48

2. After the project implementer obtains authorization for a management and disposal plan under Article 48 (1).

the management office authorized under section 49(6). In the meantime, the management office is required to remove existing buildings.

With respect to the effect when the branch plan is publicly notified, “the owner, superficies, or superficies of the previous land or building.”

Until a public notice of transfer is given pursuant to Article 54, the right holder, such as the lessor, lessee, etc.

No use or benefit from any land or building in question shall be allowed to be used or benefit therefrom: Provided, That the project executor shall not use or benefit therefrom.

§ 40. The Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor

This provision does not apply to the case of a right holder whose compensation for loss is not completed.

(2) the Corporation.

In full view of the purport of the above provisions, once a management and disposal plan is approved, the plan is approved.

When a public notice is made in the official bulletin of the relevant local government, the management and disposal plan shall be effective.

Pursuant to the foregoing, a right holder, such as the owner, superficies, lease holder, etc. of the previous land or building; more

The former land or buildings cannot be used or profited by the project implementer, while the project implementer is a project implementer.

In order to remove existing buildings, the previous land or the ground inside the rearrangement project implementation zone;

The right to use and benefit directly is deemed to have been acquired, and the previous right to use and benefit directly is based on such right.

The Gu for the transfer of the relevant land or building to the right holder, such as the owner, superficies, the person having a right to lease, the lessee, etc.

This legal doctrine can be said to have been amended through the amendment of the relevant provisions of the Urban Improvement Act.

The legislative purpose and purpose of the Act on the Maintenance and Improvement of Urban Areas, not only possible by newly maintaining and maintaining them;

FI would naturally result in a reasonable interpretation of the provisions of FI. However, this would be nowhere.

B. A management and disposition plan only takes effect as an effect, as planned in advance in the management and disposition plan.

Even if the plan is not included in the plan, it can not be said that the notice has an effect on the plan.

(d) To capture of the management and disposition plan, such as the occupation of another person's land or building without permission;

Article 49(6) of the Act on the Maintenance and Improvement of Urban Areas even if the interested parties are the project implementer.

The validity of the prescribed management and disposal plan shall be the direct title, and it shall be entitled to seek the exclusion of existing possession.

and without the need to wait for the public notice of the management and disposition plan, the project implementer directly acquired the ownership

delivery including removal in such a manner as to subrogate the ownership or other rights of a member;

In addition, even if it is included in the management and disposition plan, the compensation for loss may be sought.

In the case of a right holder who is not completed, the previous right holder on the land or building still.

The right to use and benefit is maintained.

(2) Whether the defendant occupies the defendant

Under the premise that the defendant currently occupies the title 101 of this case, the claim of the plaintiff association

as one of the parties, there is no evidence to acknowledge it, and rather, the defendant was pending in the trial of the case.

On June 1, 2009, the above deposit received from the Plaintiff’s association a gold of five million won for moving expenses.

The facts out of the above 101 without being refunded 5 million won

Therefore, the claim for the delivery of the Plaintiff Union, which is premised on the defendant's possession, needs to be examined.

without reason.

B. Whether to return the deposit to the Plaintiff Union

(1) The status of the owner and the ○○○○ in the instant case

The purport of the entire pleadings in each entry of the above facts and evidence Nos. 1, 2, and 8

In full view of the following circumstances, i.e., the instant 101

The structure of the first floor parking lot which is the section for common use of the building was modified into the house, but the building ○○

The increase or reconstruction of this case from each land owner who provided the building site of this case

The section for common use of the building of this case is not paid the construction cost under the construction contract.

It was used to incorporate houses on the rooftop and use them and substitute for the above construction cost. 2

Each of the above landowners owns a house to the above ○○○ as above in common areas of the building of this case.

In addition, the ownership of the above section for common use itself shall not be transferred to the above ○○○.

D. However, the above ○○ uses and benefits therefrom and can be appropriated for the unpaid construction cost.

(3) At the time, the defendant was to distinguish the building of this case from the building of this case from ○○.

(B) A statement of performance prepared to the effect that the owners permit the above additional construction to ○○○ (B)

No. 101 of this case was presented with a copy of the register as to the building of this case and the building of this case

The owner of the section for common use of the building of this case has changed the use of the parking lot.

The above ○○ who is a person holding the right to use and benefit from the lease of this case, knowing that it is a sectional owner.

(4) On 2003, around 2003, ○○, the president of the Plaintiff’s association, and the instant case

The implementation of the project in this case by the Plaintiff Union because the redevelopment of the land located in the building has been promoted;

The plaintiff union of this case was well known to the plaintiff union of this case

It did not claim that the Plaintiff Cooperative is the owner, and 5 The Plaintiff Cooperative is also the competent authority among the instant buildings.

The plaintiff is only entitled to co-ownership on the premise that each sectional owner shared the increased and reconstructed part without permission.

In consideration of the membership of the association, the owner under subparagraph 101 of this case shall be the owner of this case.

Each sectional owner of a building, and the above ○○○ is the same as the use and profit-making under the above 101 from each sectional owner.

It should be reasonable to deem that a lessor has been granted the authority and leased it to the defendant.

(2) Requirements for exercising the right to claim the lease deposit

(A) Relevant provisions of the Urban Improvement Act

Article 44 (Termination of Contracts, such as Superficies)

(1) An implementation of an improvement project may achieve the purpose of creation of superficies, chonsegwon, or right of lease.

If there is no such contract, the person holding the right may terminate the contract.

(2) Out of the deposit money for lease on a deposit basis held by a person entitled to terminate the contract under paragraph (1).

The right to request the return of money under contract may be exercised to the concessionaire.

(3) Business which pays the relevant money following exercising a right to request a return under paragraph (2).

The executor may demand reimbursement from the owners of relevant lands, etc.

(B) Determination

The Do Governor over a partnership project operator who is the lessee of a building in the rearrangement zone.

When exercising the right to claim the return of the lease deposit under Article 44(1) and (2) of the Correction Expenses Act, such right shall be exercised.

As to whether a lessor is required to be a partner, 1. Article 44, Section 1, 2 of the Urban Improvement Act

subsection (1) cannot achieve the purpose of the contract due to the implementation of the rearrangement project by the right holder;

In addition, the right to request the return of security deposit, security deposit, and other money under contract (hereinafter referred to as "security deposit, etc.")

When exercising the right, the other party to the contract is required to be a partnership member.

(2) The project implementer is located in the rearrangement project area as of the authorization date for the establishment of the association;

Article 45 Section 1 of the Act on the Maintenance and Improvement of Urban Areas where it is substantially difficult to confirm the location of the owner of the stable or land.

(1) The amount equivalent to the appraised value of the building or land shall be

The owner of the property may agree with the principal's will in such a case.

Since there is no fact that a partnership is not a partner of the partnership, whether a contract is entered into with the owner.

A business owner, a person having a right to lease, or a lessee shall, due to the implementation of a rearrangement project, establish the rights.

The reason why the owner is not a member can not be achieved is that the owner provided the reason.

If the project implementer may refuse to return the deposit money, etc. to the above right holder, it shall be excessively punished.

A residential environment is located in the area where the old and inferior buildings are concentrated, and (3) Housing redevelopment projects are located in the area where the old and inferior buildings are concentrated.

It is not only for personal interests of owners of land, etc. as a project implemented to improve.

D. The acquisition of and compensation for land, etc. for public works also have the nature of the public interest.

§ 61 of the Act on Public Works (hereinafter referred to as the "Act on Public Works") shall take the land, etc. required for the public service.

Land owner or person concerned (to be acquired or used by a project operator) due to acquisition or use;

superficies, easements, mortgages on leasehold rights, loans for use or lease, and other discussions

any person who holds a right other than the ownership of the land or any goods on the land;

A person who has any other right shall be liable to the project operator for such loss.

by stipulating that the right holder who has suffered loss due to the implementation of public works shall be protected;

Likewise, in implementing an urban rearrangement project, the lessor or owner who is the owner;

The lessee who has lawfully leased the building from the lessor authorized to use the building shall be the project operator.

section 2(3) of the definition that the entity is in a position to be compensated for any loss arising from a rearrangement project;

Taking into account the fact that it conforms to the belief, a legitimate appointment of a building in a rearrangement zone shall be made;

If it is impossible to achieve the objective of establishing the right of lease due to the implementation of an improvement project, the borrower;

A partnership project operator regardless of whether the lessor is a partner of the partnership project;

Therefore, it is reasonable to view that the right to claim the return of the lease deposit can be exercised.

(3) A lessee of an unauthorized building shall also exercise the right to claim the refund of the lease deposit against the project implementer.

the Corporation.

The Housing Lease Protection Act shall prescribe special cases concerning the Civil Act concerning the lease of a house.

The purpose of this Act is to ensure the stability of the residential life of the people, and all or part of the housing;

Building which only provides that the leased house shall be applied to lending and borrowing, and the leased house shall be permitted by the competent authorities;

Inasmuch as it does not distinguish whether a building has completed recognition or registration, it is not unregistered or unauthorized.

A building is also subject to the Housing Lease Protection Act (Supreme Court Decision 2004Da26133 Decided June 21, 2007).

(see Supreme Court en banc Decision 201Da1548 delivered on May 1, 201)

The lease deposit guaranteed by the Housing Lease Protection Act shall be returned to the lessee without returning it.

It is defined to implement a rearrangement project, such as moving-out from the building and removing it.

that is contrary to the concept of the State, and that the unauthorized building is not finalized to be removed under the legal procedure.

A lessee of an unauthorized building is also protected by law as well as a lessee of a legitimate building.

Considering the fact that the lease has been duly established even for the lessee of an unauthorized building;

More than 10% of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for the Right to Claim for Return of Lease Deposit

It is reasonable to see that he is a lessee who can exercise his right.

(4) Sub-decisions

In doing so, even though 101 of this case is not permitted by the competent authorities, the parking lot of this case without the permission of the competent authorities

the purpose of use for housing purposes by increasing or rebuilding B, such change in use is a unauthorized building;

The site is based on the intention of the owner of the existing building and the site is leased and used lawfully.

As long as the Defendant’s existing lease contract is terminated on the basis of Article 44 of the Urban Improvement Act, the Plaintiff’s Article

shall be liable to return the remainder of the lease deposit to the Defendant as the project operator and to the Defendant KRW 5 million.

In this respect, these obligations are simultaneously performed by the defendant in accordance with the legal principles of termination of the lease.

Therefore, the Plaintiff’s above amount of KRW 5 million and the Defendant’s objection to this amount.

From June 2, 2009, the following day after delivery of No. 101, the existence and scope of the obligation to pay by the Plaintiff from June 2, 2009

Until January 14, 2010, which is the date of the adjudication of the court of the first instance, which is deemed reasonable to dispute as to the dispute, the Civil Act is applicable.

The rate of 5% per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of full payment.

The damages for delay calculated by the ratio of 20% should be paid.

4. Conclusion

Thus, the plaintiff union's principal claim is dismissed as it is without merit, and the defendant's counterclaim is above.

It shall be accepted within the scope of recognition, and the remaining claims shall be dismissed for lack of reasonable grounds.

F. The judgment of the court of first instance is unfair on the part of this conclusion, and as such, the defendant with respect to the principal lawsuit.

Any cancellation of the part against which the plaintiff's claim for a principal action corresponding to the cancellation shall be dismissed, and any counterclaim shall be

order the plaintiff to pay the above amount by cancelling the part against the defendant ordering the above payment.

The defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge shall admonish a judge;

Judges Park Il-woo

Judges Lee Il-il

Site of separate sheet

A person shall be appointed.

Note tin

1) In implementing a rearrangement project, the location of the owner of the structure or land as of the authorization date for the establishment of the association under Article 16;

Where it is substantially impracticable to confirm, a public announcement shall be made at least twice in two or more daily newspapers distributed nationwide, and at least 30 days from the date of such public announcement.

Upon the expiration of this period, the court shall deposit the amount equivalent to the appraised value of the structure or land, the whereabouts of which is substantially impracticable.

may implement a rearrangement project.

심급 사건

-서울중앙지방법원 2009.4.23.선고 2008가합89731

서울고등법원 2010.1.14.선고 2009나62365

참조조문

-공익사업을 위한 토지 등의 취득 및 보상에 관한 법률

-도시 및 주거환경정비법 제49조 제3항

-도시 및 주거환경정비법 제49조 제6항