Plaintiff (Appointed Party) (Attorney Lee Im-soo et al., Counsel for the plaintiff-appellant)

Defendant

July 3, 2013

Seoul Eastern District Court Decision 2011Da23263 Decided July 20, 2012

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. All claims filed by the plaintiff (appointed party) and the appointed party against the above revoked part are dismissed.

3. The total cost of the lawsuit shall be borne by the plaintiff (appointed party) and the appointed party.

1. Purport of claim

The defendant shall pay to the plaintiff (appointed party, hereinafter "the plaintiff") 7,396,476 won, 2, 3, 6, and 7 of non-party 1's heir, 3,235,838 won, 4, 2,627,568 won, 2,919,304 won, and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

(a) New construction of buildings and establishment of sectionally owned co-ownership relationship;

(1) The Seoul Jung-gu (hereinafter “instant land”) was originally owned by the deceased non-party 2 (4/8), the non-party 3 (2/8), the non-party 4 (1/8), and the non-party 5 (1/8). The building on the ground of the building built the multi-household 3 multi-family housing (8 households) on March 22, 1994 (hereinafter “the building in this case”). The non-party 3, the non-party 4, the non-party 5 (7/28 shares each), the deceased non-party 2’s heir, the non-party 6 (28/28 shares), the non-party 2, the non-party 2’s heir, the non-party 2, the non-party 2, the non-party 2’s share registered as 28/28/28 shares (28/28 shares).

(2) Of the instant building, Nonparty 4, Nonparty 3 (No. 301, 202), Nonparty 5 (No. 101, 102), Nonparty 6, Nonparty 7, and Nonparty 8 (No. 201, 202), who is the deceased Nonparty 2’s heir, have each specific possession, use, and profit-making of the instant building.

B. The process of the modification of the indication of the building ledger and the certified copy of the register on the instant building

(1) On January 24, 1994, at the time of initial registration on the building ledger concerning the building of this case, multi-household detached houses (8 households) and multi-households were registered, but they were converted into multi-household houses on October 9, 200.

(2) Although the instant building was registered as a multi-household detached house at the time of its initial preservation registration, it was classified into nine units, including Non-01, Non-02, Non-01, 102, 102, 201, 202, 202, 301, 302, 302, 401, and 401.

C. Change in co-ownership and possession of the building of this case

(i)transfer of the division registration of an aggregate building;

① On March 28, 1996, with respect to the share of 28 28/4 out of the share of 101 and 102 owned by Nonparty 5, Nonparty 9 completed the registration of transfer on March 28, 1996 on the ground of the sale and purchase, and on June 4, 2007, 102, three designated parties, among their successors, enter into the registration of transfer on June 4, 2007 and reside in subparagraph 102. Nonparty 10 completed the registration of transfer on March 30, 1996 with respect to the share of 3.6/28 out of the share of Nonparty 5’s ownership on the ground of the sale and purchase, he/she succeeded to his/her legal heir on April 28, 2008, again completed the registration of transfer on May 11, 2008.

② With respect to the 201 and 28/28 shares owned by Nonparty 4, 5, who was selected on October 11, 1996 and resides in 202 on the ground of sale. Nonparty 11 completed the registration of transfer on November 20, 1997 with respect to the shares owned by Nonparty 4, 4, who was selected on November 1, 2006 and resided in 201 on the ground of sale.

③ With respect to the share of 3.4/28 out of the share of 301 and 302 owned by Nonparty 3, 6 is residing in 301 on October 10, 1995 on the ground of sale. Nonparty 12 completed the registration of transfer on November 1, 1995 with respect to the share of 3.6/28 out of the share of Nonparty 3, and Nonparty 15 completed the registration of transfer on June 5, 200 and completed the registration of transfer on June 5, 200 after Nonparty 7 completed the registration of transfer on October 12, 2005 with respect to the share of 302.

④ On February 7, 2003, the Defendant completed the registration of transfer on the ground of a successful bid due to a voluntary auction on the part of Nonparty 6, Nonparty 7, and Nonparty 8’s share, which is the co-ownership of Nonparty 6, Nonparty 7, and Nonparty 8, and is an indirect possession.

⑤ Ultimately, with respect to the instant building prior to the registration of division of an aggregate building, the Defendant was registered as sharing 8/28 shares, 3.6 shares by the deceased Nonparty 1, 3.4 shares by the Appointed 3.28 shares, 3.6 shares by the Appointed 4.28 shares, 3.4 shares by the Selection 5.28 shares, 3.4 shares by the Selection 5.28 shares, 6.4 shares by the Selection 6.28 shares, and 3.6 shares by the Selection 7.28 shares.

(2) On August 24, 2012, at the time of the registration of the division of an aggregate building concerning the instant building, the Defendant was killed in total nine sections of exclusive ownership on August 24, 2012, with the share of 28; that of 3.6 shares of the deceased Nonparty 1; that of 3.4 shares of 28 shares; that of 3.4 shares of the Appointor 3.6 shares; that of 3.6 shares of Appointor 4; that of 3.4 shares of Appointor 5: that of 3.28 shares; that of Appointor 6.4 shares; that of Appointor 6.28 shares; that of 3.6 shares of 28 shares

After that, on February 4, 2013, 201, 4, a sectional owner No. 201, sold to Nonparty 13 3.6 shares on March 8, 2013, and subsequently, on March 2013, 2013, 4: (a) the deceased non-party 1 completed the share transfer registration with respect to each section of exclusive ownership of the instant building; (b) the deceased non-party 1, and (c) the deceased non-party 2, on September 20, 201, completed the share transfer registration based on donation to Nonparty 14 on the same day.

D. Change in co-ownership of the land of this case

① After Nonparty 9 completed the registration of transfer on March 28, 1996 with respect to the share of Nonparty 5-8, Nonparty 3, one of his successors, completed the registration of transfer on June 4, 2007 due to the inheritance by agreement division.

② After Nonparty 10 completed the registration of transfer on March 30, 1996 with respect to Nonparty 1’s share of Nonparty 4’s ownership on March 30, 1996, Nonparty 10 completed the registration of transfer on March 6, 2008 for inheritance, and the deceased Nonparty 1 completed the registration of transfer on May 19, 2008 with respect to the said share of Nonparty 1’s share of which the deceased Nonparty 1 completed the registration of transfer on September 20, 201. On the same day, Nonparty 14 completed the registration of transfer on September 20, 201 with respect to the said share of Nonparty 1’s share of which was inherited.

③ On October 10, 195, with respect to the portion owned by Nonparty 3’s 6, among the shares owned by Nonparty 3’s 2/8, 196, he completed each registration of transfer on November 1, 1995 due to the sale and purchase, with respect to the portion owned by Nonparty 12/8, and Nonparty 15 completed the registration of transfer on June 5, 200 after being awarded a successful bid for a compulsory auction on June 5, 200 with respect to the portion owned by Nonparty 15.

④ On November 25, 1993, Nonparty 6, 12/56, Nonparty 7, and Nonparty 8, respectively, completed the registration of transfer on the share owned by Nonparty 6 due to inheritance on November 25, 1993, and Nonparty 5 completed the registration of transfer on the share owned by Nonparty 6, on November 21, 1996 due to sale, with respect to the share owned by Nonparty 6, on the share owned by Nonparty 15/13 on November 21, 1996; Nonparty 11 completed the registration of transfer on November 20, 197, on the share owned by Nonparty 11 on the ground of sale; Nonparty 4 completed the registration of transfer on November 1, 206; Nonparty 13 completed the registration of transfer on the share owned by the Plaintiff on March 28, 2013 on the successful bid on the ground of sale and purchase on the share owned by Nonparty 4; and Nonparty 3 completed the registration of transfer on the share owned by the Plaintiff on March 28, 206.

⑤ Ultimately, the Plaintiff shares 16/56, 14/8, 3/8 of the Selection, 13.5 shares by Nonparty 13, 15/133 of the Selection, 15/6 of the Selection, 6/8 of the Selection, and 1/78 of the Selection.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 2, 10, 13, 14, and 15 (including additional numbers), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff and the designated parties are co-owners of the land of this case. The defendant is the owner of the land of this case constructed on the land of this case, which owned and used the land of this case without any authority over the land of this case. Thus, the defendant is obligated to pay the plaintiff and the designated parties the total amount of 25,886,70 won as unjust enrichment equivalent to the rent.

B. The defendant's main argument

On October 9, 200, the instant building is deemed to have been divided ownership of an aggregate building at the time of conversion and registration into a multi-family house which is an aggregate building from a multi-family house to a multi-household house which is an aggregate building. The Defendant’s voluntary auction limited to the instant land portion is null and void in violation of Article 20(2) of the Act on the Ownership and Management of Aggregate Buildings. Thus, the Defendant still holds the right to use the site of the instant building, and thus, there is no obligation to return

3. Determination

A. Relevant legal principles

(1) In order to establish sectional ownership of one building, there exists one building in an objective and physical aspect, a divided building part of one building must have independence in structure and use, and the physically partitioned building part of one building should be the object of sectional ownership. Here, division act is a kind of legal act, without changing the physical form and quality of the building, which intends to divide a specific part of the building into the object of sectional ownership according to legal concept, and the time and method are not restricted, and it is acknowledged if the separate intention of the disposal authority is objectively indicated externally. Therefore, even before the physical completion of a sectioned building, if the intention of division is objectively indicated that the building will be a sectioned building in the future through the application for building permission or the contract for sale in lots, etc., even before the physical completion of the partitioned building, the existence of division act may be recognized, and if the building and the building corresponding to the division act are completed objectively and physically, it is still registered in the collective building ledger or it is not registered in the register (see Supreme Court en banc Decision 2017Da75757, Jan. 17, 2017).

On the other hand, even before the above en banc decision, the Supreme Court has held that the registration of indication as to a sectioned building is completed at the time of registration as a sectioned building in the aggregate building ledger in principle, exceptionally in the register (Supreme Court Decision 2004Da67691 Decided November 9, 2006, etc.).

(2) Article 20 of the Act on the Ownership and Management of Aggregate Buildings provides that a sectional owner's right to use a site shall follow the disposition of his/her exclusive ownership. A sectional owner shall not dispose of his/her right to use a site separately from his/her exclusive ownership unless otherwise prescribed by the regulations. The prohibition of separate disposal shall not oppose a third party who has acquired a real right in good faith without registering its purport. The purport of the above provision is to prevent the separation of exclusive ownership from the exclusive ownership of an aggregate building and the right to use a site from the creation of sectional ownership without the right to use a site. Thus, the act of disposal of a site contrary to the unity of exclusive ownership and the right to use a site has no effect ( Supreme Court en banc Decision 2010Da71578 Decided January 17, 2013), and Article 20 of the Act on the Ownership and Management of Aggregate Buildings shall not be deemed to have been acquired the right to use the site, and a person who has received a successful bid in an auction procedure shall not be deemed to have been disposed of separately from the right to use a site.

(3) The right to use a site is a right that a sectional owner has on the site of a building in order to own a section for exclusive use. For its establishment, other special requirements are not required in addition to the existence of an aggregate building and the right that a sectional owner is entitled to use the relevant site for the ownership of a section for exclusive use. Considering such circumstances, a third party of “a bona fide”, which cannot be asserted due to the prohibition of separate disposal under Article 20(3) of the Act on the Ownership and Management of Aggregate Buildings, refers to a third party who has acquired a parcel of land that is the object of the right to use a site, in principle, without hearing the

B. Determination on the instant case

As seen earlier, the owner of the instant building divided the parts owned by each of the owners of the instant building from the new construction to the sectionally owned co-ownership relationship, and was registered as a sectionally in the collective building ledger as of October 9, 2000. At the latest, there was an act of partitioning out the instant building at the time of the said registration conversion. On February 7, 2003, the Defendant completed 8/28 shares in the aggregate of the shares of Nonparty 6, Nonparty 7, and Nonparty 8 on the instant building corresponding to the said site and 16/56 shares in the aggregate of shares of Nonparty 7 and Nonparty 8 on the instant land, which correspond to the said site, from a voluntary auction, and the share of 56/106 shares in the instant land of the Defendant cannot be disposed of separately from the right to use the instant land and the right to use the land.

Nevertheless, since the Appointed 3 limited to the shares in the land owned by the defendant and completed the registration of transfer of shares based on the voluntary auction on March 23, 2009, this is null and void against the main sentence of Article 20(2) of the Act on the Ownership and Management of Aggregate Buildings, and the registration of transfer of shares by the plaintiff based on it is also null and void. Ultimately, the defendant is a 16/56 share holder of the land of this case and has the right to use the land of this case as to non-01 and non-02 as to the land of this case. Thus, since the defendant is a 16/56 share holder of the land of this case, it cannot be said that the defendant's possession, use and profit of non-01 and non-02

Therefore, the plaintiff's above assertion is without merit without further review.

4. Conclusion

If so, the claims of the plaintiff and the designated parties are without merit, and all of them are dismissed. Since the part against the defendant in the judgment of the court of first instance is unfair by concluding it differently, the defendant's appeal is accepted, and all of the claims of the plaintiff and the designated parties are dismissed. It is so decided as per Disposition.

[Attachment List of Appointed]

Judges Yellow-gu (Presiding Judge)