New Real Estate Trust Co., Ltd. (Attorney Choi So-young, Counsel for the plaintiff-appellant)

【Defendant (Counterclaim Plaintiff) and Appellant-Supplementary Appellant (Law Firm LLC, Attorneys Cho Jae-ho et al., Counsel for the plaintiff-appellant)

November 13, 2018

Suwon District Court Decision 2017Da51783, 2017Da54657 decided June 19, 2018 (Counterclaim)

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

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

B. The Defendant (Counterclaim) handed over to the Plaintiff (Counterclaim Defendant) about 37 square meters in Suwon-si ( Address omitted), and remove the green iron fences with a height of 25 meters set up on the line, which connects 1, 2, 3, 4, and 1.6 square meters, among the above land, on the line, which connects 1, 2, 3, 4, and 1.

C. The Plaintiff (Counterclaim Defendant) shall deliver to the Defendant (Counterclaim Plaintiff) the area of 37 square meters in Suwon-si ( Address omitted), and shall pay 671,072 won and the amount equivalent to 5% per annum from December 13, 2017 to November 29, 2018, and 15% per annum from the next day to the date of full payment.

D. The defendant (Counterclaim plaintiff)'s remaining counterclaims are dismissed.

E. The above B and C can be provisionally executed.

2. The remaining appeal by the Plaintiff (Counterclaim Defendant) and the remaining incidental appeal by the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

3. The total costs of the lawsuit shall be borne by each person in combination with the principal lawsuit and the counterclaim.

○ Purport of the principal claim and purport of appeal

Of the judgment of the first instance court, the part against the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) shall be revoked. The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall remove the Plaintiff, primarily, the part of the judgment of the first instance court (hereinafter “the instant land”) the green iron pents (hereinafter “instant pents”) with the length of 25 meters set up on the line which successively connects 1, b, c, c, d, d, and 1.6 meters high, set up on the line (hereinafter “instant land”). The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall remove the instant pents and shall transfer the instant land.

○ Purport of a counterclaim and the purport of incidental appeal

The part against the defendant in the judgment of the court of first instance shall be revoked. The plaintiff shall pay to the defendant the amount of KRW 12,215,476 and the amount of KRW 6% per annum from December 10, 2016 to the service date of a duplicate of the counterclaim, and 15% per annum from the next day to the date of complete payment, and the amount of money in proportion to KRW 939,652 per annum from December 8, 2017 to the completion date of delivery of the land in this case (the defendant filed the counterclaim in this case as a condition of rescission that the plaintiff's claim not to be accepted).

1. Basic facts of the request;

① The Plaintiff, the owner of the instant land, was the spouse of the instant building, and completed the registration of ownership transfer under the title of the instant building on January 7, 2008. The Plaintiff prepared and delivered a written consent to the use of the instant land to the non-party Asian Construction Co., Ltd. (hereinafter only referred to as “ASEAN Construction”) around July 201, which was a sectionally partitioned building of the instant building and the non-party 2 (the non-party 2 was the non-party 1’s spouse of the instant building, and the non-party 2’s land was the non-party 6’s sectionally partitioned building and the non-party 1’s sectionally partitioned building of this case’s building and the non-party 2’s sectionally partitioned building of this case’s building and the non-party 6’s sectionally partitioned building of this case’s building and the non-party 2’s sectionally partitioned building of this case’s building was not the owner of the instant building, and the construction permit of this case’s land was not the construction permit of this case’s 35210 square meters.

2. Determination on the main claim

(1) The plaintiff primarily asserts that he is the possessor of the land of this case, and the defendant, like the above, installed the pents of this case on the boundary of the land of this case and obstructed the plaintiff's possession of the land of this case. Thus, the plaintiff asserts that he sought removal of the pents of this case, based on the right to claim removal of obstruction of possession under Article 205 of the

However, possessory right is de facto controlled (Article 192(1) of the Civil Act), and the fact that the Defendant installed the instant pents and actually controlled the instant land on January 10, 2017 that the Plaintiff lost possession of the instant land at the time of the above date. Thus, it is reasonable to deem that the Plaintiff lost possession of the instant land at the time of the above date (it is apparent by the Plaintiff’s assertion that the Plaintiff still did not recover possession by Article 204 of the Civil Act). Unlike the Plaintiff’s assertion, there is no evidence to acknowledge that the Plaintiff currently occupied the instant land and that the Defendant interfered with the possession of the said land. Accordingly, the Plaintiff’s primary claim on a different premise is without merit without further review.

(2) Preliminaryly, the Plaintiff asserts that the Defendant sought removal of the instant pents and delivery of the instant land, based on the right to claim restitution of possession of the instant land under Article 204 of the Civil Act, because the Defendant, by installing the instant pents.

1) An possessor may demand the return of a thing that he/she was deprived of his/her possession, and the right to demand the return of the thing must be exercised within one year from the date of the deprivation of possession (Article 204(1) and (3) of the Civil Act).

2) In light of the above legal principles, the Plaintiff used the instant land as entry roads to the parking lot of the instant aggregate building before the Defendant installed the instant pents. As seen earlier, the Plaintiff is recognized as having de facto control over the instant land. Therefore, the Defendant, who deprived of the Plaintiff’s possession of the instant land by installing the instant pents, is obligated to remove the instant pents and deliver the instant land to the Plaintiff (it is apparent in the record that the Plaintiff filed the instant lawsuit on May 23, 2017 before the lapse of one year from January 10, 2017, where the Defendant installed the instant pents). Meanwhile, the Plaintiff’s claim for the return of the Plaintiff’s possession complies with the period under Article 204(3) of the Civil Act, since the Defendant’s removal of the instant pents is essential to return possession of the instant land to the Plaintiff. Accordingly, the Plaintiff’s claim for the instant land also has the duty to remove the instant pents.

3. Determination on a counterclaim

(a) claim for land transfer;

(1) The defendant asserts that the plaintiff possessing the land of this case without a legitimate title has a duty to deliver it to the defendant who is the owner of the land of this case.

Therefore, as seen earlier, the Defendant acquired possession of the instant land by installing the instant pentice on January 10, 2017. However, the Plaintiff seeking the restoration of possession of the instant land by the principal lawsuit of this case, and the Plaintiff’s claim for the restoration of possession based on the right to possess the instant land is well-grounded as seen earlier. As such, even if the Defendant currently occupies the instant land, the Defendant may lose it in the future by the restoration of possession. Thus, notwithstanding Article 208 of the Civil Act, the Defendant’s claim for counter-performance based on ownership is a legitimate interest as a lawsuit for future performance (see Supreme Court Decision 4290Da454, 4555, Nov. 14, 1957). Therefore, the Plaintiff is obligated to deliver the instant land to the Defendant.

(2) On this issue, the Plaintiff asserts that the instant land constitutes the instant aggregate building site. Asian construction acquired a right to use the instant land from the Defendant as a right to use the site, and the right to use the site follows the disposition of a section of exclusive ownership pursuant to Article 20(1) of the Act on Ownership and Management of Condominium Buildings (hereinafter “Act on Ownership and Management of Condominium Buildings”). Since the Plaintiff acquired the ownership of the instant partitioned building and acquired the right to use the instant land as a whole, it has the right to possess and use the instant land.

1) Article 2 Subparag. 5 of the Aggregate Buildings Act defines a site of an aggregate building as “land formed as a site of a building in accordance with the land and regulations on one building to which a section for exclusive use belongs” and Article 4(1) of the same Act provides that “the land, which is managed or used as one of the sites of a passage, parking lot, garden, building site, and one building to which a section for exclusive use belongs, and other land on which a section for exclusive use belongs, may be a site of the building by regulations.” The land on which an aggregate building is constructed shall naturally be a site of an aggregate building, namely, a legal site, but the land on which an aggregate building is not constructed and which is used for the convenience of an aggregate building, such as a parking lot, is only a site of an aggregate building pursuant to regulations or notarial deeds equivalent thereto (Articles 4(2) and 3(3) of the Aggregate Buildings Act).

2) In light of the above legal principles, this case's land is used only as entry roads to a parking lot without being constructed by the building of this case, which is an aggregate building. Thus, this case's land is not included in the above legal site unless there is an agreement or other equivalent notarial deed stating that this case's land is included in the site of this case's aggregate building, and there is no such agreement or notarial deed. As seen earlier, this case's land is not included in the site of this case's aggregate building. Therefore, the plaintiff's above assertion on a different premise is without merit.

3) As to this, the Plaintiff asserted that the instant land should be included in the instant aggregate building site, since Asia Construction made the entire land of this case as a site under the Building Act by calculating the building-to-land ratio and floor area ratio, and obtained a building permit for the instant building, the instant land should be included in the instant aggregate building site. However, insofar as the Building Act and the Aggregate Buildings Act are different from the legislative purport, and the definition of the site is separate from each other under the Building Act, it cannot be deemed that the instant land constitutes a site under the Aggregate Buildings Act. Accordingly, the Plaintiff’s above assertion cannot be accepted.

4) Next, the Plaintiff asserts that the right to use and benefit from the instant land acquired by the Defendant is a subordinate right of the instant sectioned building, and the Nonparty, who acquired the instant sectioned building in the voluntary auction procedure, acquired the right to benefit from the instant land in accordance with Article 358 of the Civil Act, and the Plaintiff acquired the right to benefit from the instant land before it.

However, the instant land is a piece of land ( Address 2 omitted) and separate land from the instant aggregate building. As long as the owners of the instant partitioned building and the instant land are different from the owners of the instant land, it cannot be deemed that the instant land is a accessory object to the instant aggregate building or the right to use and profit therefrom is a subordinate right to the instant partitioned building solely on the ground that the instant land is used as a parking lot entry into and exit from the instant aggregate building. Accordingly, the aforementioned assertion by the Plaintiff on a different premise is without merit.

5) Next, the Plaintiff, as the Defendant, the spouse of the representative director of Asian Construction, permits Asian Construction to use the instant land, and the Asian Construction was wholly a site under the Building Act. The building permit for the instant building was obtained by calculating the building-to-land ratio and the floor area ratio. As such, if the Plaintiff delivers the instant land to the Defendant, the instant building does not meet the building-to-land ratio and the floor area ratio stipulated under the Act and subordinate statutes, and the Plaintiff is bound to receive administrative disposition, such as enforcement fines, etc., from the competent authorities. The Plaintiff’s failure to rectify the said building, and the Plaintiff’s claim for the delivery of the instant land

However, just because the plaintiff asserts that the defendant's claim for the delivery of the land of this case is insufficient to be deemed to be contrary to the principle of trust and good faith, and rather, according to each entry of Gap evidence 4-1 through 7, and Eul evidence 1, each register of the partitioned building of this case does not have any registration of the right to a site ownership, and it is recognized that there was a fact that the voluntary auction case of the partitioned building of this case (this Court Decision 2014Hu42966, etc.) stated "not having the right to use a site" in the remarks column of the specifications of the sold object in the remarks column of the detailed statement of the object to be sold. In light of this, it is reasonable to view that the plaintiff purchased the building of this case with knowledge that there is a legal obstacle to the right to use the site of this case, the plaintiff

B. Requests for restitution of unjust enrichment

(1) The Defendant asserts that the Plaintiff is obligated to return unjust enrichment at the rate of KRW 12,215,476 (9,652 x 13 months x 13 months) and KRW 939,652 per month from November 7, 2016 to December 7, 2017, as the monthly rent of the instant land was KRW 939,652.

(2) First, we examine whether unjust enrichment occurred, and the fact that the Plaintiff used the instant land from November 7, 2016 to January 9, 2017, which was the day before the date when the Defendant installed the instant pen, as the entry into the parking lot of the instant aggregate building, is as seen earlier, and thus, the unjust enrichment during the said period is recognized.

However, since January 10, 2017, where the Defendant affixed the instant pents, the Defendant occupied the instant land from January 10, 2017 to the present day, and thus, the Defendant did not recognize unjust enrichment after the date of installing the said pents. Accordingly, the Defendant’s claim for this part of this case is without merit.

(3) Next, according to the records in Gap evidence Nos. 15 (Appraisal Report) and Gap evidence No. 16 (No. 2017dan502749) as to the amount of unjust enrichment, the facts constituting 8,650 square meters per square meter, which is the monthly rent as of 2016, connected to the land of this case (No. 12 (No. 2017Gadan502749 in this Court), can be acknowledged. [In accordance with Eul evidence No. 12 (No. 2017Gadan50749 in this Court), according to the records, it is deemed that the land development was leased to the non-party who was the owner of the partitioned building at the time of the building of this case at KRW 315,00,000,000 per month, such circumstance alone is insufficient to recognize that the land of this case was a monthly rent of KRW 939,652 (No. 2065,000).

Therefore, from November 7, 2016 to January 9, 2017, the Plaintiff has an obligation to pay damages for delay at a rate of 15% per annum under the Civil Act from December 13, 2017, which is the day following the delivery date of a duplicate of the counterclaim of this case, to the Defendant for unjust enrichment of 671,072 won [320,050 won + (2 months + 3/31.00 won] and from November 29, 2018, from November 29, 2018, the date when the judgment of the first instance is rendered, to the Plaintiff as to the existence and scope of the obligation to perform. However, there is no evidence to acknowledge that unjust enrichment is a obligation arising from commercial activities, and in addition, from the next day, there is no obligation to pay damages for delay at a rate of 15% per annum under the "Act on Special Cases concerning the Promotion, etc. of Legal Proceedings".

4. Conclusion

Therefore, the plaintiff's main claim and the defendant's counterclaim shall be accepted within the scope of each above recognition, and the remaining claims shall be dismissed as they are without merit. Accordingly, the plaintiff's appeal and the defendant's incidental appeal shall be accepted in part and it is so decided as per Disposition.

(attached Form omitted)

Judges Yang Sung-Gyeong (Presiding Judge)