[Plaintiff-Appellee] U.S. (Law Firm Soft, Attorneys Oi-won et al., Counsel for plaintiff-appellee)

[Defendant-Appellee] Defendant 1 and 1 other (Attorney Park Young-soo et al., Counsel for defendant-appellee

May 12, 2004

Chuncheon District Court Decision 2002Gadan3858 delivered on October 1, 2003

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance court shall be revoked. It is confirmed that the second floor of 128.9025 square meters among the buildings listed in the attached Table in the real estate list is owned by the plaintiff.

1. Basic facts

The following facts are not disputed between the parties or may be acknowledged by comprehensively taking into account the following facts: Gap evidence 1, 2-3, Gap evidence 5, 6, Gap evidence 7 (the same as Eul evidence 3), Gap evidence 8, 9, 11, and 12, Gap evidence 13-1 through 10, Gap evidence 14-1 through 9, Gap evidence 25, Gap evidence 28-3, Eul evidence 1, 22, 4, and 5, Eul evidence 1, 3, 2, 4, 5, and testimony of the court of first instance Kim Tae-ho, Lee Jae-ho, Lee Jae-ho, Lee Jae-ho, and the whole purport of the pleadings.

A. On September 11, 1975, the plaintiff, Kim Tae-ho, Kim Jong-ho, Lee Jong-ho, Lee Jong-ok, Lee Jong-ok, Lee Jong-ok, Kim Jong-do, the part corresponding to the indication of the separate sheet among the second floor buildings on the ground (hereinafter "former building") on the 39-64 (divided in the same 39-1 of March 27, 1972) owned by the net Shin Jong-do, Tae-dong, Tae-dong, 39-64 (hereinafter "Gu building") was leased for residence or business, and purchased the old building and its site by jointly investing as shown in the separate sheet of investment amount in the separate sheet. On September 8, 1974, the registration of the old building and its site purchased shall be transferred under the joint name of the above nine persons, and the agreement was concluded to possess each corresponding part of the separate sheet as shown in the separate sheet that it had been leased and used.

B. After that, on January 25, 1979, the Defendant acquired the shares of the old building and its site, and on the old building and its site, on January 25, 1979, the registration of ownership transfer was completed because the Plaintiff, the Defendant, and the Jin-Jin were jointly owned by 1/8 of shares in the old building and its site.

C. Meanwhile, in the process of removing old buildings on three lots, including the Plaintiff, the Defendant, the Kim Tae-ho, the forestry road, the Kim Jong-ho, the forest road, the forest fluor, the red clothes, and the Kim leap, and the construction of a new building on three lots, including the land and Tae-si, Yellow-si, 39-62, 39-63, the following agreement was made.

(1) Agreement dated March 17, 1983: Kim Doh and Yyoungok, which possessed the portion of the building on the north side of the old building on the basis of the line connecting each point specified in the annexed drawing Nos. 13 and 5 among the previous buildings, shall be implemented jointly with the remaining six persons, while the section to be partitioned shall be limited to the north side of the new building.

② 1983. 3. 21.자 합의 : 원고, 피고, 김태호, 임영길, 김상곤, 이인성(홍종복의 매형)은 ㉠ 지하 1층, 지상 3층의 건물을 신축하되, 건물 신축비용은 주주 6명 전원이 균일하게 투자하기로 하고, ㉡ 건물 완공 후 6명이 합의한 가격으로 분양하며, ㉢ 주주가 분양 및 매입에 관한 우선권이 있고, ㉣ 건물 준공 후 분양 및 매도총액에서 공사비를 공제한 잔액은 구건물 매입 당시의 투자비율로 환산 분배하며, ㉤ 분양 후에는 주주 각인 명의로 분할등기하고, ㉥ 위 합의한 사항을 위약한 자는 건축할 의사가 없는 것으로 간주하고 나머지 주주가 일방적으로 건축하여도 위약자는 민, 형사상 일체의 이의를 제기하지 않기로 합의한다.

③ 1983. 10. 11.자 합의 : 원고, 피고, 김태호, 임영길, 김상곤, 이인성, 김윤애, 임영옥은 ㉠ 각자에게 배당되는 건축비를 지정기일까지 불입하는 것을 원칙으로 하고, ㉡ 지정기일까지 불입하지 못하여 건축비를 차용하여 공사를 진행하게 될 때에는 월 4%의 이자를 가산하여 불입하며, ㉢ 공사완공시까지 융자된 금액을 완납하지 못한 자는 신축건물 중 지분가옥(각자에게 특정하여 배당되는 부분을 뜻하는 것으로 보인다)에 입주할 수 없고 이를 임대하여 그 보증금을 건축비에 충당하며, ㉣ 1983. 3. 21.자 합의 당시 당초 건축비를 균등부담하기로 했던 원고, 피고, 김태호, 임영길, 김상곤, 이인성은 구건물 매입시의 투자금액 비율대로 분담하기로 한다.

D. Around May to June 1983, the Plaintiff, the Defendant, the Kim Tae-ho, the Gam-ho, the Gam-ho, the Gam-ho, the Gam-ho, the Kim Jong-ho, the Kim Jong-ho, the Red Dop, and the Lee Jae-hee (Seoul), who signed a contract for construction of a building with the Plaintiff as the representative owner, and obtained a construction permit from the Plaintiff on June 20 of the same year. However, the construction was not carried out smoothly since October to November of 1983, and the construction continued as the representative owner of Kim Tae-ho and completed a completion inspection on the new building of the third floor above the ground (hereinafter referred to as the “new building”).

E. However, in the collective building ledger prepared with respect to a new building, the defendant was registered as the owner on the second floor of the new building (second floor of the building stated in the attached Table of Real Estate List).

F. At present, new buildings are classified registration of No. 1, No. 1, No. 6, No. 1, 2, No. 4, 1, 1, 2, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 3, 3, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1,

2. The plaintiff's assertion

The plaintiff asserts as follows as the cause of the claim of this case.

A. The part of the new building corresponding to the possession of each of the old buildings was agreed to be divided ownership of each of the new buildings while the Plaintiff, the Defendant, the Kim Tae-ho, the forest road, the forest road, the Kim Jong-ho, the forest road, the forest road, the forest road, the red clothes, and the Kim le-do, are to remove the old buildings and build

B. Since the Plaintiff occupied the second floor of the old building as indicated in the attached drawing, the Plaintiff acquired the second floor ownership in the new building on its original condition.

C. However, the defendant exercises his right as the owner of the above second floor by using the fact that the second floor of the new building is registered as the owner of the collective building ledger. Thus, the plaintiff seeks confirmation of the ownership of the second floor of the new building against the defendant.

3. Determination

Therefore, as to whether the Plaintiff acquired the ownership of the second floor of the new building, the agreement between the Plaintiff and the Defendant, Kim Tae-ho, Kim Jong-ho, Kim Jong-ho, and Lee Jong-sung on March 21, 1998 provides that "shall be registered in the name of each shareholder after the sale of the new building," and the purport of the entire pleadings is as follows. At the time of removal of the new building and construction of the new building, the co-owners of the new building agreed to occupy and own the new building in proportion to the location and area of the building occupied by the old building and the new building, and as such, considering the above facts, it cannot be deemed that the Plaintiff agreed to legally own co-owners of the new building, including the Plaintiff and the Defendant, to share the portion corresponding to the previous building's ownership after the construction of the new building, and it is difficult to view that the Plaintiff acquired the ownership of the new building and the new building's new building's new building's 20th anniversary of the fact that the Plaintiff did not have made any effort to acquire the ownership of the new building.

4 Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Hong Jae-chul (Presiding Judge)