In the case of agreement to vest the ownership of a new building in a new building construction contract to the contractor, whether the ownership of the building is originally vested in the contractor (affirmative), and in the case of a new building which became a joint owner and entered into the said contract, the standard for determining the ownership of each section of exclusive ownership of the aggregate building (=agreement between the co-owners)

In principle, ownership of a newly constructed building is the original acquisition by a person who constructed it with his own effort and materials. However, in the construction contract of a new building, if the contractor and the contractor agree to vest in the contractor the ownership of the completed building, such as that the contractor will obtain a construction permit under the name of the contractor and the contractor even if the contractor completed the building with their own effort and materials, the ownership of the building shall be vested in the contractor. In this case, the ownership of the building shall be vested in the contractor. If the building is a newly constructed building and the contract for construction is concluded jointly with several persons as the owner, the joint owner shall comply with the agreement by which each ownership of the said aggregate

Articles 105, 187, and 664 of the Civil Act

Supreme Court Decision 89Da1884 delivered on April 24, 1990 (Gong1990, 11135) Supreme Court Decision 91Da34790 delivered on March 27, 1992 (Gong1992, 1385) Supreme Court Decision 96Da24804 delivered on September 20, 196 (Gong196Ha, 3142), Supreme Court Decision 97Da8601 delivered on May 30, 1997 (Gong197Ha, 2021) (Gong204, 134)

Plaintiff (Law Firm Sol, Attorneys Oh Jeong-won et al., Counsel for plaintiff-appellant)

Defendant (Attorney Park Young-soo et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 2003Na3243 delivered on June 9, 2004

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

1. The court below acknowledged the following facts in full view of the admitted evidence.

A. The plaintiff, the non-party 1, the non-party 2, the non-party 3, the non-party 4, the non-party 5, the non-party 6, the non-party 7, and the non-party 8 leased and resided in or run a part of the building on the second floor (hereinafter referred to as the "former building") on September 8, 1974, each of which was owned by the deceased non-party 9 [the address 1 omitted], and the non-party 1.6 million won, the non-party 1.2 million won, the non-party 3.2 million won, the non-party 4.4 million won, the non-party 6.5 million won, the non-party 71.5 million won, the non-party 7.8 million won, the non-party 888, and the non-party 880,000 won, each of which was purchased on the previous building site and purchased on the non-party 97.15.

B. After that, on January 25, 1979, the defendant acquired the shares of the non-party 4 and the non-party 5 on the old building and its site, and on the old building and its site, the plaintiff, the defendant, the non-party 10 (the non-party 1 was doing business in the name of the non-party 10 from the old building), the non-party 2, the non-party 3, the non-party 6, the non-party 7 and the non-party 8 shared one eight shares, respectively, and the registration of ownership transfer was completed.

C. Meanwhile, the Plaintiff, the Defendant, Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 6, Nonparty 7, and Nonparty 8 decided to remove the old building and build a new building on the ground of three lots, including the site and solar city ( Address 3 omitted), and ( Address 4 omitted). During that process, each party agreed to occupy and own a new building on the basis of the location and area that each party occupied, and the following agreement was made in sequence.

(1) Agreement dated March 17, 1983: Nonparty 8 and Nonparty 6, who possessed the portion of the building on the north side of the old building on the basis of the line connecting each point of indication 13 and 5 of the annexed drawings among the previous building, shall be carried out jointly with the rest of the new building, and the section to be partitioned shall be limited to the north side of the new building.

(2) The agreement of March 21, 1983: the plaintiff, the defendant, the non-party 1, the non-party 2, the non-party 3, and the non-party 11 (the shapes of the non-party 7) are to build the buildings of the first and third floors underground, and the non-party 11 (the non-party 7) are to invest the buildings equally, and the expenses for the construction of the buildings are to be sold at the price agreed upon by six shareholders; the non-party 6 shall have priority over the sale and purchase; the balance after the completion of the building shall be converted into the investment ratio at the time of the purchase of the old building; the non-party 1, the non-party 2, the non-party 3, and the non-party 11 (the non-party 7) shall be deemed to have no intention to build the buildings; and the non-party 1 shall not raise

(3) The agreement on October 11, 1983: the plaintiff, the defendant, the defendant, the non-party 1, the non-party 2, the non-party 3, the non-party 11, the non-party 8, and the non-party 6 shall, in principle, pay the construction cost distributed to each person by the designated date; the non-party 6 shall pay the construction cost plus the interest of 4% per month if the construction cost is not paid by the designated date; the non-payment of the construction cost shall be made by adding the interest of 4% per month if the construction cost is carried out by borrowing the construction cost; the non-payment of the construction cost until the completion of the construction is made by the non-payment of the construction cost; the non-payment of the construction cost is not possible to move into the house of share (which means the part specified to each person); the lease shall be appropriated to the construction cost; and the "Article 2 Paragraph (1) of the construction cost" among them shall be deleted; and the ratio of the initial construction cost to share shall be made as the investment amount.

D. The plaintiff, the defendant, the non-party 1, the non-party 2, the non-party 3, the non-party 6, the non-party 8, the non-party 7, and the non-party 12 (the non-party 3's wife) signed a contract for the construction of a building with the plaintiff as the representative owner on or around May 6, 1983 and commenced the construction on or around June 20 of the same year upon obtaining a building permit. However, the construction was not smoothly progress at around October to November of the same year, and the construction continued as the representative owner on or around July 1984, as a result, the non-party 1 was the representative owner on the non-party 1 and continued the construction on the non-party 1's underground floor and the non-party 3's new building (hereinafter "new building").

E. However, in the aggregate building ledger prepared on a new building, the Defendant registered the second floor of the new building as the owner.

F. At present, a new building is classified under subparagraph A (B) of the first floor, subparagraph B (B) of the underground floor, subparagraph C (C) of the underground floor, subparagraph 1, subparagraph D (E) of the first floor, subparagraph 1, subparagraph 2 of the first floor, subparagraph f (F), subparagraph 1 of the first floor, subparagraph 7 of the first floor, subparagraph 7 (G), subparagraph 1 of the first floor, subparagraph H (H), and subparagraph 1 of the third floor. Of them, the registration of initial ownership was completed in the names of Nonparty 6, Nonparty 13, Nonparty 14, and Nonparty 15, the heir of Nonparty 2, with respect to subparagraph 1 of the first floor, respectively, and the remainder is unregistered.

2. According to the above facts, the court below found that there was an agreement between the plaintiff and the defendant and the co-owners of the old building including the defendant on the original sectional ownership of the part corresponding to the previous possessed part after the construction of the new building, but the ownership of the newly constructed building was originally acquired by the person who constructed the new building by using his own effort and materials, so it is difficult to deem that the plaintiff acquired the ownership of the second floor from the new building immediately due to the circumstance that there was such sectional ownership agreement, and there is no evidence to support that the plaintiff had constructed the second floor of the new building with his own effort and materials. Rather, according to the adopted evidence, it is recognized that the plaintiff paid the second floor of the new building with only 3,468,00 won, which is less than half of the contribution paid to him in relation to the construction of the new building, even if the lease deposit was appropriated for the construction price, and thus, the defendant bears the obligation to return such deposit, and thus, it cannot be viewed that the plaintiff acquired the ownership of the new building, as a matter of course, barring any circumstances such as lawful acceptance.

3. However, the above decision of the court below is hard to accept.

A. Under the principle of ownership of a new building, if a person who constructed a building with his own effort and materials acquires it originally, but in the contract for the construction of a new building, if the contractor and the contractor agree to vest the ownership of the completed building, such as that the contractor will obtain a construction permit under the name of the contractor and the contractor even if the contractor completed the building with their own effort and materials, the ownership of the building shall be vested in the contractor (see Supreme Court Decision 96Da24804 delivered on September 20, 1996, etc.). In this case, if a new building is an aggregate building and the owner of the building jointly becomes the owner of the building, the joint owner of the building shall be subject to an agreement to which the ownership of each section of exclusive ownership of the aggregate building belongs.

B. Therefore, as the judgment of the court below, if there was an agreement under which the co-owners of the old building including the plaintiff and the defendant and the defendant set up an agreement that the part corresponding to the previous part of the building should be equally divided ownership (in light of the fact that the registration of preservation of ownership in the name of the owners of the previous building was made, it appears to be true, and it is apparent that there was an agreement between the contractor and the contractor to vest the ownership of the new building in the contractor), and barring any special circumstance, the ownership of the second floor of the new building shall be deemed to have been originally acquired by the plaintiff who occupied and used the second floor of the previous building.

C. The Plaintiff’s portion of the cost of constructing a new building is not paid until the completion date of construction. However, according to the agreement of October 1, 1983 between the Plaintiff and the Defendant, Nonparty 1, Nonparty 2, Nonparty 11, Nonparty 8, and Nonparty 6, who did not pay the construction cost to each party by the designated date. If the Plaintiff did not fully pay the construction cost by the 5th anniversary of the construction cost of the 2nd floor, it is difficult to find that each party among new buildings could not occupy the 4th unit of the 5th unit of the 5th unit of the 1st unit of the 5th unit of the 2nd unit of the 5th unit of the 2nd unit of the 5th unit of the 1st unit of the building and the 2nd unit of the 5th unit of the 2nd unit of the 1st unit of the 5th unit of the building, the remainder of the construction cost of the 10th unit of the 2nd unit of the 2nd unit of the building should be deducted from the 10th unit of the 1st unit of the new building.

D. Thus, barring any special circumstance, the plaintiff should be deemed to have acquired the second floor of a new building on the original condition (the issue of monetary settlement under an agreement between the parties is a separate issue). The court below concluded that the plaintiff did not acquire the second floor of the new building on the sole basis of the reasons stated in the judgment below. Such judgment of the court below is erroneous in the misapprehension of legal principles as to the original acquisition of an aggregate building newly constructed under a construction contract, and the interpretation of a declaration of intention was affected by the remaining judgment. The plaintiff pointed out this issue and pointed out the grounds for appeal are with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition.

Justices Yang Sung-tae (Presiding Justice)