K&P Investment Co., Ltd. (Attorney Park Won-won, Counsel for the plaintiff-appellant)

Defendant 1 and 10 others (Attorney Go Jong-hee, Counsel for the defendant-appellant)

November 20, 2013

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 6, and Defendant 7 shall jointly and severally pay to the Plaintiff 288,235,581 won and the amount calculated by the rate of 20% per annum from the day following the delivery of a copy of the claim and the application for modification of the cause of the claim as of August 21, 2013 to the day of full payment. The said money calculated by the rate of 4,641,679 won per annum from March 14, 2013 to the day on which possession of the Defendants or the Plaintiff’s ownership or superficies is lost, and each of the said money shall be paid at the rate of 20% per annum from the day following the due date to the day of full payment.

2. Defendants 8, 9, 10, and 11 jointly and severally pay to the Plaintiff the amount of KRW 12,430,495, as well as the amount of KRW 20% per annum from the day following the delivery of the copy of the claim and the application for modification of the cause of the claim as of April 9, 2013 to the day of complete payment. The amount calculated at the rate of KRW 1,035,80 per annum from March 14, 2013 to the day when the possession of the above Defendants is completed, or the Plaintiff’s 63/91 equity interest is lost, and the amount calculated at the rate of KRW 1,035,80 per annum from the day following the due date to the day of full payment is paid.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the pleadings as set forth in the evidence Nos. 1 through 10, 1 through 36, 3-1 through 8, 4-7, 9, 30, 42-1, 2, 30, 42-3, and 22-2.

(a) Details about the construction of the market building and the ownership of such building site;

1) On October 18, 1971, Busan Jin-gu ( Address 1 omitted) 57 lots (hereinafter “the instant market site”) owners and 44 props such as the right holder of the annual appeal against the state-owned land under the U.S. (hereinafter “instant props”) decided to contribute to each party’s own land to construct commercial apartment including the market building as part of the project to improve the inferior district against the above land, and established ○○○ apartment (hereinafter “○○○ apartment”).

(2) The above ○○○ apartment and the instant props shall be classified into the name and address of 3, 4, 4, 4, 4, 4, 4 (2), 3, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 4, 5, 5, 5, 4, 5, 5, 5, 7, 4, 5, 5, 5, 5, 5, 5, 1, 19, 19, 20, 21, 224, 26, 25, 2,

3) The instant props, ○○○○○○ apartment and the instant props, on a two-dimensional basis, divided the instant building into 143 stores and 201 stores for each of the instant building (hereinafter “each of the instant stores”) and divide the instant building into 201 stores, according to the ratio of the area of the invested land. The instant props completed registration of initial ownership in their respective names.

4) Meanwhile, due to the circumstances that many state-owned land are included in the land invested by the instant props, and the ○○○○ apartment does not have the ability to bear the acquisition tax and registration tax due to the combination of land, the ownership remains in the name of each props up to now (including its inheritors or those who acquired the ownership from them). Some land may be disposed of at will by the landowners, and thus, the superficies was set up for the purpose of owning the steel beanc building in the name of Nonparty 16, Nonparty 15, and Nonparty 17, the liquidator of ○○○○○ apartment, who is the liquidator of ○○○○○○ apartment, for the purpose of owning the steel bean Crec

B. Legal relationship related to the land No. 1 at present

1) At the time of the construction of the instant building A, Nonparty 1 was owned by Nonparty 15. The completion inspection of the said building was conducted under the circumstances described in Paragraph (a) and the registration was completed even after Nonparty 15 was allocated a store in proportion to the above land. Of that, Nonparty 15 died, which was caused by inheritance on February 3, 1995, Nonparty 1 (/91), Nonparty 2 (shares 14/91), Nonparty 2 (Share 14/91), Nonparty 18 (Share 14/91), Nonparty 3 (Share 14/91), Nonparty 6 (Share 14/91), Nonparty 19 (Share 6/91), Nonparty 20 (Share 6/91), Nonparty 4/91), and Nonparty 21 (Share 4/91), respectively, on January 17, 2012.

2) On January 6, 2012, the Plaintiff purchased each share from Nonparty 1, Nonparty 2, and Nonparty 3 and Nonparty 6 on March 12, 2012, and completed the registration of transfer on the aggregate of 63/91 shares on February 2, 2012 and March 14, 2012.

3) Of the stores located in the building A of this case, the respective sections owned by Defendants 8, 9, 10, and 11 are as listed in Table 1 below.

[Attachment 1: Relation to Sectional Ownership of Building A of this case]

The owners of Nos. 1 and 7 of Nos. 1 21 of 21 of the size of Nos. 21 of Nos. 1 and 2 of No. 82, Defendant 2 of No. 68 of the size of No. 23 of No. 82, No. 68 of the size of No. 69 of No. 94, No. 70 of the size of No. 71 of No. 71 of No. 72 of No. 71 of No. 71 of No. 97 of No. 97 of No. 97 of No. 97 of No. 97 of the size of No. 1 and No. 31 of No. 97 of No. 97 of the size of No. 97 of No. 1 and No. 32563 of the size of No. 97 of No. 1, No. 97 of the size of No. 1 and No. 97 of No. 97 of the size of No. 2 of No. 97 of No.

C. Legal relationship related to the land of this case No. 2 through 10 at present

1) At the time of the new construction of the instant building B, land Nos. 2 and 3 was owned by Nonparty 22. The completion inspection of the said building was conducted on the grounds as described in Paragraph (a) and registration remains even after Nonparty 22 was allocated a store according to the ratio of the said land. The ownership transfer registration was completed on September 6, 1995 with respect to the instant land Nos. 2 and 3 on the ground of sale by compulsory auction as of December 10, 2011.

2) Meanwhile, with respect to the land of this case, the registration of the establishment of part of the superficies for the purpose of “ownership of a building consisting of a superficies contract between Nonparty 22, Nonparty 16, Nonparty 23, and Nonparty 17,” the scope of “ownership of a building consisting of part of the land south of the land,” “50.0 square meters of the remaining part of the land,” and the duration “permanent from August 18, 1977,” was completed on August 20, 197. Of the above part of the superficies, Nonparty 16 shares on September 21, 199, and Nonparty 17 shares on August 31, 2001 were completed each transfer of the superficies shares in the future of the Magdong market, an incorporated association, on the grounds of each transfer on August 31, 201.

3) At the time of the new construction of the instant building B, the registration of the creation of superficies as described in the table 2 below was completed on the land Nos. 4 through 10. Of these, the shares of Nonparty 16 were transferred to the Seocho-gu, an incorporated association, on September 21, 1999, respectively.

[Attachment 2: Details of superficies established on the land Nos. 4 through 10 of this case]

The entire land owned by Nonparty 16 and Nonparty 152 on July 14, 1975, all of the land owned by Nonparty 4 of this case on July 14, 1975, which was owned by Nonparty 16 and Nonparty 152 on April 11, 1975, on the non-party 4 square meters of the south of the land, 4 square meters of 8 on March 28, 1975, and 3 permanently from March 28, 1975, the non-party 6 of this case on April 11, 1975, all of the non-party 7 of this case on April 11, 1975, the non-party 4 of this case on April 11, 1975, the non-party 4 of this case on April 26, 200, the non-party 4 of this case on the non-party 4 of this case on April 26, 1975.

4) Of superficies created on the land Nos. 4 through 10 of this case, the ownership of Nonparty 15 was transferred respectively to Nonparty 1, Nonparty 2, Nonparty 18, Nonparty 3, Nonparty 6, Nonparty 19, Nonparty 20, and Nonparty 21 on January 17, 2012 on the ground of inheritance as of February 3, 1995. After that, the Plaintiff completed each registration of transfer on the respective shares of Nonparty 1 and Nonparty 2 on February 2, 2012 among superficies on each of the above lands, and on March 14, 2012 on each of the shares of Nonparty 3 and Nonparty 6 on the ground of transfer.

5) Of the instant building B, the parts owned by Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 6, and Defendant 7 are as listed in each of the following Table 3:

[Attachment 3: Relation to Sectional Ownership of the Building B of this case]

The owner of a building located in the main text shall be entitled to separate 145 square meters of 145 square meters of 135 square meters of 145 square meters, 2.3 square meters of 147 square meters of 147 square meters of 2.192 square meters of 192, 6.61 square meters of 24 square meters of 194, 196 No. 196, 5-132564 of 196, 196, 268 square meters of 198, 27 No. 26262 square meters of 263 square meters of 36.3 square meters of 163 square meters of 163 square meters of 163 square meters of 163 square meters of 263 square meters of 263 square meters of 263 square meters of 264 square meters of 263 square meters of 263 square meters of 1263 square meters of 264.

6) On the other hand, around 2012, the Plaintiff entered into an agreement with Nonparty 1, Nonparty 2, Nonparty 3, and Nonparty 6 on the assignment of claims with respect to the instant land Nos. 4 through 10 with the content that the Plaintiff acquires all of the past claim for the land owned by the said building owners.

2. The plaintiff's assertion

A. Claim on ownership

1) The Plaintiff is a beneficial right holder of the instant land No. 1. Defendant 8, Defendant 9, Defendant 10, and Defendant 11 jointly occupied the said land as a sectional owner of each part of the building No. 1 of the instant building located on the said ground without permission. Therefore, the said Defendants shall jointly and severally return to the Plaintiff the portion equivalent to the above share out of the unjust enrichment equivalent to the land rent accrued after the date on which the Plaintiff acquired the said share.

2) The Plaintiff is the owner of the instant land Nos. 2 and 3, and Defendants 1, 2, 3, 4, 5, 6, and 7 jointly occupy the said land as a co-owner of each part of the instant building No. 3’s attached Table among the instant building B located on the ground. Therefore, the said Defendants shall jointly and severally return to the Plaintiff unjust enrichment equivalent to the land rent accrued from the date the Plaintiff acquired the ownership of the said land (as for the instant land for which a partial superficies was established, only the remainder of the land for which superficies was not established).

B. The assertion regarding superficies

The Plaintiff is a right holder of superficies created on the land Nos. 4 through 10, and is a person to whom the claim for rent accrued in the past from Nonparty 1, Nonparty 2, Nonparty 3, and Nonparty 6. Therefore, Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 6, and Defendant 7, who are the sectional owners of some of the instant Dong building located on the ground, shall jointly and severally return to the Plaintiff the portion equivalent to the above share out of the unjust enrichment equivalent to the land rent accrued after March 8, 202.

3. Determination

A. It is reasonable to view that an owner of land or a person holding superficies has renounced the exclusive and exclusive right to use and benefit from the land by providing the land free of charge for a specific purpose easily recognizable in appearance. Accordingly, it is reasonable to view that a person who specifically succeeds the ownership or superficies after the land was used for the above purpose through auction, sale, payment in substitutes, etc., to have acquired the ownership or superficies of the land, at least by allowing the circumstance that such restriction on use and profit is a burden, or at least by knowing such circumstance. Thus, he/she may not exercise the exclusive and exclusive right to use and benefit from the land provided for the above purpose (see Supreme Court Decision 2012Da26411, Jul. 12, 2012, etc.).

B. Regarding the instant case, the following circumstances were revealed by comprehensively taking account of the facts of recognition as above and the evidence as above, Eul evidence Nos. 1, 13, 18, and Eul Nos. 47-2 and 14, and the purport of the entire pleadings, i.e., the parties agreed to the purport that around 1975, they would belong to the market site of this case as public property of the commercial market and would not jointly sell, lease, transfer, etc. to others in the future. ② Based on the above agreement, the props of this case contributed to their own land and completed registration of preservation of ownership after allocating stores within each building in accordance with their ratio, but they could easily be seen as having been holding the above land under the name of the sectional owner or sectional owner of this case without registering the transfer of the land to ○○○○○ apartment apartment, which was established for the purpose of using the land of this case, and the fact that each of the above sites of this case was established for the purpose of using the land of this case and the right to use the land of this case was established for 7 years thereafter.

In addition, as seen earlier, the Plaintiff acquired part of the share of the land No. 1 and the superficies on the land No. 63/91 and the land No. 4 and 10 from Nonparty 15, one of the co-owners of the instant land, on the ground of transfer, and acquired the land No. 2 and 3 as a result of auction. In light of the legal relationship and situation surrounding each of the instant land as seen earlier, the Plaintiff, who acquired the ownership or superficies from the person who renounced the exclusive and exclusive rights to use and profit therefrom, shall be deemed to have acquired the land ownership or superficies with the knowledge of such circumstances, at least the fact that the Plaintiff, who acquired the ownership or superficies by the reason of sale or auction, has a burden of restricting the right to use and profit. Thus, the Plaintiff cannot assert the exclusive and exclusive right to use and profit from each of the instant land in relation to the Defendants, a sectional owner of some of the instant stores.

C. Ultimately, the Plaintiff’s assertion seeking the return of unjust enrichment equivalent to the land rent against the Defendants, a partial owner of each of the instant stores, on the premise that each of the instant stores was entitled to exclusive and exclusive use rights on the ground of ownership or superficies over each of the instant land is without merit without further review.

4. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed in its entirety as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges In-depth interference (Presiding Judge) Kim dilution Lee