[Defendant-Appellant]

Defendant 1 and six others (Law Firm Hyeong et al., Counsel for the defendant-appellant)

Seoul Northern District Court Decision 2007Gadan29345 Decided June 3, 2008

June 24, 2009

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

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

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Plaintiff

(a) Defendant 1, 2, 5, 6, 7:

(1) remove 1/7 shares of each of the buildings listed in the Schedule 10, 12, and 13; and

(2) remove 1/7 shares in the shares of 324.46/439.38 shares in the 14th portion of the building listed in the separate sheet; and

(3) deliver the land listed in Appendix 1; and

B. Defendant 3:

(1) remove 11 buildings listed in the separate sheet, and remove them from the above building; and

(2) remove the shares of 114.92/439.38 on the 14th portion of the building listed in the Schedule; and

(3) deliver the land listed in Appendix 1; and

C. Defendant 4 shall leave the 10 building listed in the attached list from the 10th place.

(3) In the first instance court, the Defendants and Nonparty 2,6,7,7,8, and 3 filed a request for the cancellation of the building name, the removal of the building, the delivery of the land, and the removal of the building. The court of first instance dismissed only the claims against Nonparty 2 among them, and accepted all the remainder of the claims. Accordingly, the Defendants appealed against this issue. Since the Plaintiff voluntarily withdrawn the part of the claim against Defendant 1 and 2, the subject of the judgment of this court is limited to the removal of the building, the delivery of the land, and the removal claim against the Defendants).

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

(a) Former legal relationship of land and multi-household construction;

(1) On June 2003, Nonparty 2 awarded a contract to Nonparty 1 for construction of 4 households on the land listed in the separate sheet (hereinafter “instant land”). Nonparty 2 entered into an agreement with 2 households and the remaining 2 households, by means of payment in kind, etc., to cover the construction cost. On June 16, 2003, Nonparty 2 himself/herself became the owner, and obtained a construction permit for 4 households on the instant land-based multi-household 1, and Nonparty 1 began to build 1 multi-household 2 land listed in the separate sheet (hereinafter “instant land-based multi-household 2”). On the same day, Nonparty 2 entered into a construction permit for multi-household 1 and 2 land of this case from around that day.

(2) The land of this case was originally owned by Nonparty 2, who was co-defendant 1 in the first instance trial. Of July 14, 2003, the registration of ownership transfer was made in the name of Nonparty 1 with respect to the share of 1.76 percent on July 14, 200, and the sales contract was concluded between Nonparty 1 and Nonparty 2 with the purchase price of KRW 155,000,000, and the down payment was made in KRW 50,000,000, and the remainder of KRW 153.24 percent on September 8, 2003, the ownership transfer registration was made in the name of Nonparty 1 in the name of Nonparty 1 in the future (no remainder payment).

(3) The land of this case 2 was originally owned by Nonparty 1. On July 14, 2003, the ownership transfer registration was completed in the name of Nonparty 2 for the portion of 1.76 percent on July 14, 2003, and on September 8, 2003, the ownership transfer registration was completed in the name of Nonparty 1 for the same portion. Accordingly, the ownership transfer registration was completed in the name of Nonparty 1 for the whole land of this case 2.

(4) On September 8, 2003, Nonparty 1 obtained a loan from Choung Bank with the instant land No. 1 and No. 2 as a joint collateral, and completed the registration of creation of a mortgage on the instant land No. 507,00,000 won with respect to the instant land and No. 1 and 2, and the debtor, Nonparty 1 and the collateral security bank, respectively.

(5) At present, 1 multi-household house is constructed, which is divided into 10 to 13 buildings listed in the separate sheet and 14 buildings listed in the separate sheet (hereinafter “instant 10 to 13 buildings and the instant 14 buildings”) on the ground of the instant land. One multi-household house, which is divided into 3 to 9 buildings listed in the separate sheet (hereinafter “instant 3 to 9 buildings”) on the ground of the instant land, is constructed.

B. Auction of real estate and acquisition of the Plaintiff’s ownership

(1) With respect to the instant 1, 2, and the instant 3 through 9 buildings, the Seoul Northern District Court Decision 2004Ma41262, 2005Ma4932, and 38461, regarding the instant 1, 2, and the instant 1, and the instant 1, and the instant 1, and the instant 2, and the compulsory auction was conducted on August 2, 2005 upon application for a compulsory auction after the provisional seizure on August 2, 2004, and the compulsory auction was issued on March 14, 2005, and the compulsory auction was registered on March 14, 2005, and the decision to commence the compulsory auction was completed on December 1, 2005 upon application for a voluntary auction based on the said collateral.

(2) On the other hand, with respect to the buildings of this case 3, 5, provisional attachment by Choung Bank on December 27, 2004, registration of preservation of ownership was made on the same day by entrustment, and on February 4, 2005, provisional attachment was made by this net industry corporation, and on March 14, 2005, the registration of the entry of the decision of commencement of compulsory auction was made on the application of non-party 9's compulsory auction, and on December 5, 2005, the entry of the decision of voluntary commencement of auction was made on December 5, 2005.

(3) The Plaintiff was awarded a successful tender on April 25, 2007 and completed each registration of ownership transfer on the instant land 1, 2, and 3 or 9 buildings.

(c) Possession and possession relations;

(1) Ownership of the instant building 10,12,13

With respect to the instant multi-household housing constructed on the ground of this case, the registration of ownership transfer was made in the name of Nonparty 2 on May 11, 2005 due to the request for the registration of provisional disposition. On August 6, 2007, the registration of ownership transfer was made in the name of Nonparty 1, and the registration of ownership transfer was completed in the name of Nonparty 6, 2, 1, 5, 7, and the co-defendant 3 and Nonparty 4 in the name of Nonparty 6, 2, 1, 5, 7, and 7, respectively (Defendant 6, 1, 1, 5, 7, 4, and 3 asserted that Nonparty 1 is the true owner of the above building, and that Nonparty 2 and Nonparty 1 were the real owner of the above building, and that Nonparty 2 and Nonparty 1 did not file a lawsuit for ownership transfer registration for the reason of Nonparty 1’s restoration to Nonparty 4 on April 11, 2006.

(3) Ownership of the instant building 11

With respect to the instant 11 multi-household housing constructed on the ground of the instant land, the registration of ownership transfer was completed in the name of Nonparty 2 on May 11, 2005 due to the request for provisional disposition, and on December 28, 2006, the registration of ownership transfer was completed in the name of Defendant 3 on January 5, 2006, Seoul Northern District Court 2005dan38628 on January 5, 2006.

(4) The ownership of the instant 14 building portion

The building portion of this case 14 is owned by the owners of sections for exclusive use as part of multi-household housing on the land of this case 2.

(5) The relationship between the possession of the instant building 10, 11

Defendant 4 and Defendant 3 occupy each of the instant 11 buildings.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 4, Eul evidence 1 to 9, Eul evidence 1 to 3, Eul evidence 2, 3, Eul evidence 1 to 7, Eul evidence 1 to 7, Eul evidence 1 to 2, Eul evidence 1, Eul's evidence 2 (including each number), non-party 1 and 11 of the witness of the trial court, the whole purport of oral argument

2. The assertion and judgment

A. Summary of the cause of the claim

(1) The instant land 1 and 2 and the instant building 3 through 9 are owned by the Plaintiff.

(2) As Defendant 6, 2, 12, 5, and 7, who participated in Nonparty 2’s succession, owned the instant building 10, 12, and 13 and occupied the instant land without title, Defendant 6, 2, 12, and 5, and 7 are obligated to remove the instant building within the limit of 1/7 shares, and deliver the instant land to the Plaintiff within the limit of 1/7 shares.

(3) Since Defendant 3 owned the instant 11 building on the ground of the instant land and occupied the instant land without title, Defendant 3 is obligated to remove the instant 11 building and deliver the instant 1 land to the Plaintiff.

(4) Since the instant 14 building is co-owned part of multi-household housing, Defendant 3, 6, 2, 1, 5, and 7, who is the owner of exclusive ownership, owns without title. Each co-owner is obligated to remove the instant 14 building according to his co-ownership and deliver the relevant site.

(5) From among multi-household houses on the instant land 1, Defendant 4 and Defendant 3 occupy the instant 11 building without title. As such, Defendant 4 and Defendant 3 have the duty to withdraw from each of the above possessed parts.

B. Determination

Defendant 6, 2, 1, 5, and 7 own the instant building 10, 12, and 13 on the ground of the instant land owned by the Plaintiff. Defendant 3 completed the registration of ownership transfer as to the instant building 11, and Defendant 3 was the co-owned part of the instant building, which is the underground part of the instant building 10 through 13 buildings (multihouseholds), as seen earlier. Thus, the said Defendants are obligated to remove the instant building 10 through 13 and the instant 14 and deliver the instant land to the Plaintiff within the scope of their respective shares, as sought by the Plaintiff, unless there are special circumstances.

In addition, as seen earlier, Defendant 4 and 3 occupy the instant 10,11 building on the ground of the instant land No. 1, and thus, Defendant 4 and 3 have the duty to leave the relevant building, barring any special circumstance.

As to this, the Defendants asserted that all of the parts of the instant 10 to 13 buildings and the instant 14 buildings owned by Nonparty 1, and that Defendant 6, 2, 1, 5, 7, and 3 acquired legal superficies under customary law since the Plaintiff acquired only the land by auction. The Defendants asserted that the Plaintiff cannot comply with the instant claim.

On September 8, 2003, the non-party 1 acquired the ownership of the land of this case on and around June 2003, and the non-party 2 ordered the non-party 1 to build a multi-household 4 households on the land of this case. The plaintiff was awarded a successful bid on April 25, 2007 and completed the registration of ownership transfer in the future. The non-party 1 can be acknowledged that the non-party 1 acquired the ownership of the land of this case on the land of this case with his own effort and material and constructed the building of this case on the land of this case, and the non-party 1 acquired the ownership of the above building, and the non-party 1 acquired the land of this case and the part of the building of this case 10 to 13, and the part of the building of this case were owned by the non-party 14 under the customary law of this case, but only the defendants acquired the land of this case.

The Plaintiff pointed out that the instant 10, 12, and 13 buildings were registered under the name of Nonparty 2, and that there is no room for establishing statutory superficies under customary law because the said buildings were not owned by Nonparty 1 at the time of the successful bid. However, in a case where a construction business operator purchases a building site of another person and constructs a building in his own effort and material on that ground without paying the down payment, the purpose of the construction permission is general cases to secure the site payment obligation, and if the debtor under the name of the owner of the building that is newly constructed with his own expense and effort to secure the obligation, the establishment of a security right by a juristic act is the agreement to offer the building to be completed as security by the obligee. Thus, it is difficult to view that the ownership of the completed building was transferred to the obligee within the scope of the original purpose of the sale of the building by Nonparty 1, 200, 4817, 4825, 481, etc. on that ground, even if the ownership of the building was acquired under the name of the obligee.

4. Conclusion

If so, the plaintiff's claim against the defendants is dismissed due to the lack of reason, and the judgment of the court of first instance which differs from this conclusion is unfair, and thus, the appeal by the defendants is accepted.

[Attachment]

Judges Sick Modle (Presiding Judge)