[1] The scope of validity of the mortgage established on only the section for exclusive use before the registration of ownership transfer has been made on the section for exclusive use and the registration of ownership transfer has been made on the section for exclusive use

[2] Whether it constitutes unjust enrichment for a successful bidder to receive registration of the share in the site even though the successful bidder was awarded a successful bid even though the portion of exclusive ownership was conducted with respect to the portion of exclusive ownership prior to the registration of transfer of ownership on the share in the site of a sectioned building

[1] In light of the provisions of Article 20(1) and (2) of the Multi-Unit Residential Building Act and the main text of Article 358 of the Civil Act, unless there are special circumstances, such as the effect of a mortgage established on a section of exclusive ownership only prior to the completion of registration of ownership transfer on a section of exclusive ownership and the completion of registration of ownership transfer on a share in the site due to the delay in the portion of shares in each household, etc. of the site of an aggregate building, the effect of a mortgage established on a section of exclusive ownership prior to the completion of registration of ownership transfer on a section of exclusive ownership due to the delay in the decision on share ratio per household, shall extend to the right to use the site, which is a accessory or subordinate right, if the owner

[2] The auction procedure was initiated based on the right to collateral security established only with respect to the section for exclusive use prior to the completion of the registration of ownership transfer for the section for exclusive use, and the auction procedure was conducted without reflecting the appraised value as to the share in the site in the auction order for the section for exclusive use, barring special circumstances, such as where there are regulations to separately dispose of the right to use the site against the section for exclusive use without reflecting the appraised value as to the share in the site, the successful bidder also acquired the right to use the site, which is a accessory or subordinate right, according to the successful bid, which is the object of auction. Thus, after the registration of the share in the site of a section for exclusive use has been completed at the request of the execution court, it cannot be deemed that the successful bidder obtained profits without any legal grounds, with the fact that the successful

[1] Article 2 subparag. 6 and Article 20 of the Multi-Unit Residential Building Act, Article 358 of the Civil Act / [2] Article 20 of the Multi-unit Residential Building Act, Article 358 and Article 741 of the Civil Act

[1] [2] Supreme Court Decision 94Da12722 delivered on August 22, 1995 (Gong1995Ha, 3232), Supreme Court Order 97Ma814 delivered on June 10, 1997 (Gong1997Ha, 2253), Supreme Court en banc Decision 98Da45652, 45669 delivered on November 16, 200 (Gong201Sang, 39)

Plaintiff (Law Firm Sejong, Attorneys Osung-hwan et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Nam-chul et al., Counsel for defendant-appellant)

Incheon District Court Decision 2000Na12594 delivered on March 23, 2001

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. In an aggregate building, where only the registration of ownership transfer to a section of exclusive ownership has been made and the registration of ownership transfer to a section of exclusive ownership has been delayed for a long time due to a delay in a decision on the ratio of shares per household, etc., a person who has received only the ownership transfer registration for the section of exclusive ownership and paid the price in the form of parcelling-out from the constructor of the aggregate building and has the right to possess and use the site of the building in order to own the section of exclusive ownership through the effect of a sales contract. Such right to possess and use the site of the building has the right to own and use the site of the building in the position of the buyer, which is a right that a sectional owner under Article 2 subparag. 6 of the Multi-Unitial Building Act has a right to own the site of the building to own the section of exclusive ownership. (See Supreme Court en banc Decision 98Da45652, 4569, Nov. 16, 200; Supreme Court en banc Decision 97Da25899, May 9, 20197).

2. Based on evidence employed by the court of execution, the plaintiff was entitled to sell the apartment complex of this case (hereinafter referred to as the "exclusive ownership portion of this case") on July 3, 1996 with its site. On September 25, 1997, the portion of exclusive ownership was not completed, but the registration of ownership transfer was not completed as to the portion of exclusive ownership at the time, and on November 18, 1997, the court below decided that the section of exclusive ownership was established on December 9, 1997 and decided that the portion of exclusive ownership was subject to 9,000 won upon the request of the non-party, and that the non-party was not subject to the auction procedure. After the issuance of promissory notes to the non-party on December 9, 1997, the court below decided that the portion of exclusive ownership was subject to 9,000 won, and that the non-party was subject to 9,000 won of the auction procedure.

In light of the records, the fact-finding and judgment of the court below are just in accordance with the above legal principles, and there are no errors in the misapprehension of legal principles as to the possibility of separate disposal of the right to a site, the non-exercise of right to a land, and incomplete deliberation as to the circumstances that can be seen as possible to separate disposal of the right to a site, the violation of the rules of evidence as to whether the price of the right to a site is included in the successful bid price of real estate, and

In addition, as long as the above judgment of the court below is justified, the part that "in light of the initial appraised value on the apartment of this case or the statement at the plaintiff's hearing date, the successful bid price paid by the defendant in the auction procedure seems to have been reflected not only in the section for exclusive use but also in the price for the share of the site" does not affect the conclusion of the judgment, and the argument in the grounds of appeal as to the part in the judgment is not acceptable without

In addition, the Plaintiff’s assertion that the Defendant agreed to pay KRW 8 million to the Plaintiff is only written only in the briefs submitted after the closing of argument in the original trial, and there is no evidence on the records, and the part of the briefs written by the Defendant, which appears to have accepted unjust enrichment of a part of the amount, is a family statement and is clearly indicated as such purport on the date of pleading. Therefore, the allegation in the grounds of appeal based on these matters cannot be accepted.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition.

Justices Lee Ji-dam (Presiding Justice)