The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. The court below affirmed the judgment of the court of first instance which held that the defendant is obligated to deliver the dispute portion of this case to the plaintiff and return unjust enrichment, unless the defendant proves his legitimate title to possess the dispute portion of this case, which is part of the building of this case in the judgment of the court of first instance.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

The Plaintiff, as an organization comprised of co-owners of the building of this case, is responsible for all management and operation of the building of this case, such as the overall management and surrender of the building of this case, and received rents from lessees and carries out the business of distributing them to co-owners. The Defendant primarily claims the delivery of the dispute of this case and the return of unjust enrichment on the premise that it is an illegal occupant of the dispute of this case. In addition, the Plaintiff demanded the delivery of the dispute of this case and the return of unjust enrichment on the premise that the Defendant transferred the dispute of this case to the lessee

In a case where the defendant illegally occupies the part of the dispute of this case, the legal relation claiming the delivery of the part of the dispute of this case and the return of unjust enrichment against the defendant shall be deemed to be based on the ownership of the building of this case.

However, even according to the Plaintiff’s assertion, the Plaintiff is not the owner of the instant building, but the organization with the authority to manage the instant building on behalf of the co-owners of the instant building. Therefore, the Plaintiff cannot exercise his right to claim the return, etc. reverted to the owner of the instant building.

Nevertheless, the lower court upheld the first instance judgment which accepted the Plaintiff’s primary claim on the ground that the Plaintiff could deliver the dispute part of this case to the Defendant, who is the possessor of the dispute of this case, and claim for restitution of unjust enrichment.

The judgment of the court below is against the illegal possessor.