[1] Whether a lawsuit seeking the procedure to cancel the change of owner's name is legitimate (negative)

[2] The ownership of a building newly constructed under a contract agreement

[3] The case holding that where the forest owner paid part of the construction cost for the new building on the ground, and the owner of the building was the contractor at the time of the above contract, the contractor shall acquire the ownership of the newly constructed building on the original condition

[1] A lawsuit seeking the implementation of the procedure for change in the name of a building owner against a transferor or trustee who does not consent to change in the name of the building owner can be deemed as a benefit of lawsuit. However, the first building permit is an administrative disposition that the head of a Si or Gun et al., cancels the relative prohibition that the building should not be performed generally to the authorized person without the permission of an administrative agency in order to achieve the purpose of the building administration, and thus restores the freedom to a certain construction act, and does not give any new right or ability to the permitted person. The building permit is not a method of public announcement of the acquisition and loss of the right to the permitted building, but it is not a method of public announcement of the acquisition and loss of the real right to the building, so it is not considered that the owner acquires the ownership of the building, and second, Article 10 of the Building Act, Article 12 of the Enforcement Rule of the Building Act, Article 11 of the Building Act does not have any legal basis for cancellation of the name of the building owner due to the change in the name of the building owner.

[2] Generally, a person who constructed a building in his/her own effort and material acquires the ownership of the building in original condition. However, in the case of a contract, if the contractor appears to have agreed to vest in the contractor the ownership of the completed building by obtaining a construction permit under the order of the contractor and the contractor even if the contractor completed the building in his/her own effort and material, the ownership of the building shall be vested in the contractor in the original condition. In addition, if the building is completed under the name of the owner of the site, unless there are other special circumstances, it shall be entered in the building management ledger under the name of the owner of the building permit under the name of the owner of the building permit and the registration of ownership shall be made under the Building Act or the Registration of Real Estate Act, etc.

[3] The case holding that where the forest owner paid part of the construction cost as the contract owner for the new construction of the building on the ground, and the owner of the building was the contractor at the time of the above contract, the contractor shall acquire the ownership of the newly constructed building on the original condition

[1] Article 10 of the Building Act, Article 12 of the Enforcement Decree of the Building Act, Article 11 of the Enforcement Rule of the Building Act, Article 226 of the Civil Procedure Act / [2] Articles 187 and 664 of the Civil Act / [3] Articles 187 and 664 of the Civil Act

[1] Supreme Court Decision 88Da6754 delivered on May 9, 1989 (Gong1989, 896), Supreme Court Decision 91Nu491 delivered on March 31, 1992 (Gong1992, 1442), Supreme Court Decision 95Da29901 delivered on October 11, 1996 (Gong1996Ha, 3294) / [2] Supreme Court Decision 96Da24804 delivered on September 20, 1996 (Gong196Ha, 3142), Supreme Court Decision 97Da8601 delivered on May 30, 197 (Gong197Ha, 2021)

Kim Jin (Attorney Cho Jong-jin, Counsel for the defendant-appellant)

Kangmo et al. (Attorney Kim Young-ho, Counsel for the plaintiff-appellant)

March 12, 1999

1. Of the instant lawsuit, the part of the lawsuit seeking the cancellation procedure in the name of the owner shall be dismissed.

2. All remaining claims of the Plaintiff are dismissed.

3. Litigation costs shall be borne by the plaintiff.

As to the building indicated in the attached list (hereinafter, the building in this case), Defendant Daehan implemented the procedure for cancellation of the name of the owner on the building permit ledger for storage building in the military unit, which was changed from the defendant Down to the defendant Down, and Defendant Daehan fulfilled the procedure for change of the name of the owner on the building permit ledger for storage building in the military unit, and confirmed that the building in this case is owned by the plaintiff.

1. Basic facts

The following facts can be acknowledged in full view of the statements in Gap evidence 1, 2, and 4-1 through 3, Gap evidence 5, and 6 and the testimony of the witness Cho Young-gu and the whole purport of the pleading, and there is no counter-proof.

A. The process of entering into a contract for new construction works of the building of this case

(1) On July 10, 1990, the Plaintiff entered into a construction contract with the Defendant Gangnam-do, Chungcheongnam-do, Chungcheongnam-do (hereinafter “the forest of this case”) with the content that the construction cost of the building of this case shall be KRW 530,400,000, totaling the construction cost of KRW 6,800,000 per square year, and the construction period shall be newly constructed from August 6, 1990 to July 31, 1992, on the ground of 34,708m2 (hereinafter “the forest of this case”).

(2) The Plaintiff completed the instant building and delivered it to the Defendant Gangwon-do, but no registration of preservation of ownership has been made at present.

(3) On November 8, 1993, the Defendant Gangnam-gu paid only KRW 230,400,000 out of the above construction price to the Plaintiff, and issued and delivered to the Plaintiff a promissory note with the face value of KRW 300,000,000, and the due date of November 7, 1994, but the said promissory note did not be settled thereafter.

B. Ownership relation to the forest of this case

(1) On December 31, 1987, the defendant Down purchased the forest land of this case from Non-Party Bedon, and completed the registration of ownership transfer under the above defendant's name on February 12, 198.

(2) On November 12, 1993, the defendant Gangnam-do concluded a mortgage establishment agreement between the defendant Orsa with regard to the forest of this case with the right to collateral security (the right to collateral security) and the right to collateral security (the maximum debt amount) and the right to collateral security (the right to collateral security) as of November 16, 1993.

(3) On February 12, 1996, Defendant Oracon filed a voluntary auction on the instant forest land and received a decision to commence auction at this court, and on May 27 of the same year, Defendant Oracon paid the price in full at that time, and completed the registration of ownership transfer under Defendant Oracon’s name on July 25 of the same year.

(c) A change of the project owner name;

The defendant Gangnam-gu obtained the building permit of the building of this case from the head of the Gun conferred on March 18, 1987, and on July 2, 1998, on the ground of the transfer of ownership on the forest land and building of this case, the name of the owner was changed to the name of the owner.

2. Determination on the cancellation of the project owner's name and the request for change of name

A. The plaintiff's assertion

On September 20, 1996, the Plaintiff, as the actual owner of the instant building, was the real owner who was lawfully transferred the instant building from the Defendant Gangwon mother to the payment for the remainder of the construction project, and the Defendant Plaintiff, despite being aware of such fact, was transferred the ownership of the instant building from the Defendant Gangwon mother for the purpose of undermining the Plaintiff, and changed the name of the owner. As such, the Plaintiff asserted that the Defendant Plaintiff was liable to cancel the procedure for cancellation of the name of the building owner on the building permit register to the Plaintiff, and the Defendant Gangwon-do was obligated to perform the procedure for change of the name of the owner.

B. Determination on the claim for the cancellation of the project owner’s name

A lawsuit against a transferee of a building under construction or a person who entrusted the name of the building owner to another person shall be deemed to have a benefit in lawsuit against the transferor or trustee who does not consent to the change of the building owner's name in lieu of the expression of such intent. However, first, a building permit is an administrative disposition that restores the freedom of construction to a certain permitted person by cancelling and granting a relative prohibition that administrative agencies such as the head of a Si/Gun should not generally engage in construction activities without the permission of an administrative agency in order to achieve the purpose of the building administration, and it does not give any new right or capacity to the permitted person. Since the building permit is not a method of public announcement of the acquisition and loss of substantial rights as to the permitted building, it is not a method of public announcement of the acquisition and loss of rights as to the permitted building, and it cannot be deemed that the responding person of the building owner acquired the ownership of the building in this case, second, Article 10 of the Building Act, Article 12 of the Enforcement Rule of the same Act, and Article 11 of the Enforcement Rule of the same Act does not provide for the change of the building permit in the name of the defendant's.

C. Determination on the request for performance of the procedure for change of name

As seen earlier, inasmuch as it is inappropriate to seek the cancellation of the change in the name of the owner from the defendant Gangwon-do to the defendant, the claim seeking the implementation of the procedure for change in the name of the owner against the defendant Gangwon-do, who is not the name of the owner, is no longer reasonable.

3. Determination on the claim for ownership verification

A. The plaintiff's assertion

The plaintiff asserts that, as alleged above, the plaintiff is the actual owner of the building of this case, and the defendant Ora is dissatisfied with this issue, so the building of this case is seeking confirmation as to whether it owns the plaintiff.

(b) Markets:

In general, a person who constructed a building in his own effort and material acquires the ownership of the building in original condition. However, even if the contractor completes the construction of the building in this case with his own effort and material, if it appears that the contractor and the contractor agreed to vest in the contractor the ownership of the completed building, such as obtaining a construction permit under the name of the contractor, even if the contractor completed the construction in his own effort and material, the ownership of the building shall be reverted to the contractor. In addition, if the building is completed in the name of the defendant Gangwon mother who is the owner of the site, unless there are other special circumstances, the ownership of the building in this case shall be reverted to the contractor, and if the building is completed in his name, it shall be registered in his name as the owner in the building management ledger under the name of the owner of the building permit, and the registration of ownership preservation shall be made in the name of the owner registered in the building management ledger. Thus, it is obvious that the Plaintiff acquired the ownership of the building in this case as part of the contract price, and the Plaintiff’s ownership was not acquired as part of the construction price.

4. Conclusion

Thus, the plaintiff's lawsuit of this case against the defendant defendant O-con with the part of this case seeking the implementation of the procedure for cancellation of the owner's name is dismissed as it is unlawful, and the remaining claims are dismissed as it is so decided as per Disposition.

Judges Kim Young-chul (Presiding Judge)