2016Da15358 Removal, etc. of buildings

person

Effective Co., Ltd.

1. A;

2. B;

Seoul High Court Decision 2014Na55873 Decided February 4, 2016

August 18, 2016

Defendant B’s appeal is dismissed.

All the judgment below is reversed, and the case is remanded to Seoul High Court.

1. As to the appeal by Defendant B (hereinafter “Defendant Company”), the appeal by Defendant B (hereinafter “Defendant Company”) seeks revocation and alteration of the judgment disadvantageous to himself/herself in favor of himself/herself, the appeal by the lower court against the entire winning judgment shall not be allowed as there is no benefit of filing the appeal (see, e.g., Supreme Court Decision 91Da40696, Mar. 27, 1992).

The record reveals that the court below dismissed the Plaintiff’s claim against the Defendant Company. Therefore, the appeal filed by the Defendant Company that won the entire winning case against the Plaintiff is unlawful as there is no benefit of appeal.

2. Plaintiff’s ground of appeal

A. In the event that a building belongs to the same owner but the owner of the building or the land becomes different due to sale and purchase of the building or for any other reason, the owner of the building shall acquire legal superficies under the customary law for the building, unless there is an agreement to remove the building. However, if there is a special agreement between the parties to remove the building and exercise full ownership not interfered with the building on the ground, statutory superficies under the customary law shall not be created (see, e.g., Supreme Court Decisions 87Meu279, Sept. 27, 198; 98Da58696, Jan. 18, 200).

In addition, in a case where there is a difference between the parties regarding the interpretation of a contract, and the interpretation of the intention of the party expressed in the disposition document is at issue, it shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent (see, e.g., Supreme Court Decisions 2004Da6065, May 27, 2005; 2006Da15816, Sept. 20, 2007).

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) On September 8, 2006, Defendant A and C (the representative director of the Defendant Company) entered into a contract for the sale of real estate for the construction of a complex-type detached house (hereinafter referred to as “instant contract for the sale of real estate”) with the total purchase price of 15,057m (hereinafter referred to as “the instant project site”) on the land owned by the Defendant A, including the instant land, as the total purchase price of 13 lots of land owned by the Defendant, including the instant land, and agreed to trust the instant project site to the trust company for the purpose of selling and managing the instant land.

(2) On May 13, 2008, Defendant A and C concluded a development project agreement (hereinafter “instant business agreement”) with the trustor and the owner of the project site, between the Defendant Company, the contractor and the contractor, the Plaintiff, the Fund Manager, the Bank of Korea, the Bank of Korea, the lender, the International Asset Trust Co., Ltd., the trustee of the management-type land trust (hereinafter “International Asset Trust”), and the International Asset Trust Co., Ltd., the trustee of the management-type land trust (hereinafter “instant project”).

(3) Accordingly, on May 14, 2008, Defendant A and C, as a truster, concluded a management-type land trust agreement to trust the instant project site to an international asset trust (hereinafter “instant trust agreement”) for the trustee’s international asset trust, joint implementers Defendant C.G. and the Plaintiff, and completed the registration of ownership transfer based on the instant trust agreement on the same day.

(4) After the progress of the instant project, the International Asset Trust: (a) disposed of part of the instant project site including the instant land by public auction; and (b) the Plaintiff completed the registration of ownership transfer on June 28, 2013 with respect to the instant land. Based on the foregoing factual basis, the lower court determined that Defendant A acquired legal superficies under customary law on the instant land for international asset trust, barring any special circumstance, on the ground that (1) Defendant A completed the registration of ownership transfer due to international asset trust on the instant land during the possession of the instant land and buildings; and (2) based on the reasons indicated in its reasoning, including the instant business agreement and the interpretation of trust contract, it is insufficient to deem that at the time of the transfer of ownership to the International Asset Trust, Defendant A did not intend to use the instant land, or that Defendant A and the International Asset Trust did not have any intent to use the instant land, or that the agreement on the possession and use of the instant land and the agreement on the removal of the building were concluded.

D. However, according to the above facts and the evidence duly admitted, the following circumstances are revealed.

(1) The purpose of the instant trust agreement is to provide the beneficiary with trust benefits by managing and operating the single canle 27 units and ancillary facilities, which are the building on the entire land of the trust site, including the instant land (Article 1). The Defendants, after concluding the trust agreement, shall implement the registration procedure for transfer of ownership and the registration procedure for trust registration with respect to the instant land without delay. The Defendant Company and C shall cancel all rights other than the ownership of the instant land and complete relocation, removal of obstacles, removal, etc. (Article 4 of the special agreement). In addition, the instant business agreement also provides that Defendant A and C shall perform the business of removal and disposal of obstacles within the instant project site (Article 4(2)8), and there is no content to deem that the instant building is excluded from the said removal subject to the said removal, which could interfere with the execution of the instant project (Article 4(2)8).

(2) As the construction of the instant project began, five of the six buildings in the instant site were demolished, and the instant building remains without being demolished, but according to the sale car sloping of the instant project and the new construction work drawings, the instant building is to remove the instant building in the area where the instant building is located and to construct a single cane box.

(3) The instant business agreement provides that the Defendant Company, the implementer, received a loan from the Defendant Company, used it as the sales price and business cost, and repaid the loan with the proceeds from the sale of the instant business site, and the amount of KRW 5 billion out of the sales price of the instant loan to Defendant A shall be paid after repaying the principal and interest of the instant loan. Defendant A concluded the instant sales contract with C for the instant business before the date of loan execution, and decided to sell the instant business site to C, and the amount of KRW 5 billion out of the sales price was agreed to be paid after the completion of the instant business, shall be prepared and submitted to the Bank of Korea, a stock company, and thereafter, the loan was executed in accordance with the instant business agreement. Defendant A received all the remainder of the loan, excluding the balance of KRW 5 billion, by receiving part of the sales price under the instant sales contract from the said loan.

(4) On the other hand, the instant sales contract indicated the instant site as the subject matter of sale, and on the other hand, six buildings, including the instant building on the ground of the instant project site, shall be deemed included in the subject matter of sale, and the instant building was sold together with the instant project site, and the Defendant Company, the representative director of which, was the buyer, occupied and used for the purpose of sale and publicity and the office for the instant project after being transferred from Defendant A.

(5) Meanwhile, Defendant A is not a priority beneficiary of the trust principal and trust proceeds under the instant trust agreement. The instant business agreement and trust agreement do not have any agreement on securing the remainder of the purchase price of Defendant A to the effect that Defendant A may continue to own the instant building without removing the building until the remainder of the balance is received. Rather, there is no statement to interpret that the said balance is merely an agreement to be paid out of the balance after the completion of the instant project that removes the instant building and newly constructs a private canal, and after the completion of the construction of the instant project, it would be impossible to achieve the objective while carrying out the instant project.

E. Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to view that Defendant A and International Asset Trust agreed to remove the instant building on the ground of the instant land so that an international asset trust can implement the instant project from the instant land by exercising full land ownership that does not interfere with the instant building, and even if the instant building was used by Defendant Company without removal, it cannot be deemed that the instant building was used for a limited period of time as seen earlier, as it was actually offered the instant land and buildings to the instant business, and KRW 18 billion out of the purchase price was paid, and the remainder of KRW 5 billion was agreed to be paid from the proceeds of sale after the completion of the instant project, and thus, it is reasonable to deem that there was an agreement to remove the instant building on the ground of the instant land so that the instant land may be implemented from the instant land by exercising full ownership that does not interfere with the instant building.

F. Nevertheless, the lower court determined otherwise on the ground that it was insufficient to recognize that there was an agreement to remove the instant building at the time when the ownership of the instant land was transferred to an international asset trust on the grounds of the circumstances indicated in its reasoning, and determined that Defendant A acquired legal superficies under the customary law for the instant building on that premise.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the agreement and interpretation of legal acts concerning removal without legal superficies under customary law, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, the appeal by the defendant company is dismissed, and all judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Gin-young