2006Gahap5003 Registration of cancellation of ownership transfer

A

B and 14 others

October 17, 2007

November 14, 2007

1. The plaintiff's main claim against the defendants is dismissed. 2. The main claim in the lawsuit in this case is dismissed.

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

As to each real estate listed in the separate sheet, the registration of ownership transfer completed on January 0, 2006 by the Busan District Court, the Busan District Court, the dong Branch of the Busan District Court, and the registration of ownership transfer completed on February 00, 2006 by the receipt No. 200, with respect to each real estate listed in the separate sheet, by the defendant C, the Busan District Court, the Dong Branch of the Busan District Court, and the Southern Branch of

Defendant D shall register the transfer of ownership that was completed on February 0, 2006 by the receipt No. 00 on February 20, 2006, with respect to the real property in paragraph 2 of the attached list in Busan District Court.

Defendant E’s transfer registration of ownership completed on February 0, 2006 by the receipt No. 00 on February 20, 2006, with respect to the real property in paragraph 3 of the attached list as stated in the Busan District Court

Defendant F: the ownership transfer registration completed on February 0, 2006 with respect to the real estate in paragraph (4) of the attached list, which was completed on February 1, 2006 by the Busan District Court's Dong Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Branch's Office;

Defendant H’s transfer of ownership, completed on February 0, 2006 by the receipt No. 00 on February 0, 2006, with respect to the real property listed in paragraph (7) of the [Attachment List]:

Defendant I shall register the transfer of ownership that was completed on February 0, 2006 by the receipt No. 00 on February 0, 2006, with respect to the real property in paragraph 8 of the attached list in Busan District Court.

Defendant J shall register the transfer of ownership that was completed on February 0, 2006 by the receipt No. 00 on February 0, 2006, with respect to the real property in paragraph 9 of the attached list in Busan District Court.

As to the real estate in paragraph (10) of paragraph (10) of the attached list, Defendant K shall register the transfer of ownership as completed on February 0, 2006 by the receipt No. 10 of the Busan District Court's Dong Branch Branch of the

Defendant L, with respect to the real estate in paragraph (12) of the attached list, has been completed on February 0, 2006 by the Busan District Court and Dong Branch Branch of the Busan District Court and the registration of transfer of ownership completed on February 00,

Defendant M shall register the transfer of ownership completed on February 0, 2006 by the receipt No. 00 on February 0, 2006 with respect to the real property in paragraph (13) of the attached list in Busan District Court.

The defendant N shall register the transfer of ownership that was completed on February 0, 2006 by the receipt No. 00 on February 00, 2006 with respect to the real property in paragraph (14) of the attached list in Busan District Court.

As to the real estate in paragraph 15 of the annexed list, the defendant ○ shall register the transfer of ownership completed on February 00, 2006 by the receipt No. 15 of the annexed annexed list,

The defendant P will implement the procedure for cancellation registration of ownership transfer registration completed on February 0, 2006 by the Busan District Court's Dong Branch of the Busan District Court on the real estate in paragraph 16 of the attached list.

1. Facts of recognition;

다음 각 사실은 당사자 사이에 다툼이 없거나, 갑1호증의 1 내지 16, 갑2, 8호증, 갑 9호증의 1, 2, 3, 갑 11호증의 1, 갑12호증의 1 내지 5, 을1호증의 1, 2의 각 기재, 을2호증의 5의 일부 기재 및 증인 甲, 乙, 丙, 丁의 각 일부 증언에 변론 전체의 취지를 종합하여 인정된다.

A. On April 0, 1994, A completed 90% of the loan of this case from the office of Busan to the office of Busan to the extent of 00 dong 3* the 16th floor above the 16th floor above the 1st floor above the 2nd above the 2nd above the 1994 and the 16th above the 2nd above the 1st above the 2nd above the 2nd above the 2nd below the 1994, with the construction permission on the apartment house above the 1st above the 4th above the 1st above the 2nd above the 2nd above the 2nd above the 2nd below the 3nd below the 3nd below the 195th below the 195th below the 3nd below the 190th below the 19

나. 이에 甲은 위 부도로 구속될 형편에 처하자 1995. 3. 0. 수억원의 대여금 채권자인 , 庚에게 이 사건 빌라 부지인 위 00동 3 * 외 1 토지 중 甲의 5분의 3 지분에 관하여는 丙 앞으로, 위 ○○동 6** 토지에 관하여는 경 앞으로 소유권이전청구권가등기를 경료해 주는 한편, 그 무렵 공사업자의 대표격인 원고에게 건축주를 대신하여 위 빌라의 마무리공사와 공사업자들에 대한 공사대금채무관계를 맡아 해결해 달라고 이에 관한 권한을 위임하였고 그와 같은 상태에서 위 빌라 공사업자인 戊, 己, 乙, 丁, 申, 壬(이하 '戊 등'이라 한다)은 위 빌라에 입주하여 거주하기 시작하였다.다. 그후 戊 등은 丙으로부터 이 사건 빌라를 넘겨받았다면서 2000. 11. 00. 癸와 사이에 그들이 위 빌라에 관하여 가지고 있는 모든 권리를 꽃에게 양도하기로 하는 내용의 계약을 체결하고, 子는 2002. 9.경 癸와 함께 법인을 통해 위 빌라를 인수하여 분양사업을 하기로 계획한 후 그 무렵 癸가 이사로 있던 피고 B를 인수하였다.

라. 한편, 이 사건 빌라 부지에 관하여는 丙, 庚에 의하여 위 나. 항의 가등기에 기하여 그들 명의로 소유권이전등기가 마쳐진 다음 1995. 4. 00. 원고 앞으로 소유권이전등기가 마쳐지고, 그와 같은 상태에서 근저당권자인 ○은행의 경매신청에 의한 임의경매절차에서 ○은행이 2001. 3. 0. 낙찰받았다가 피고 B가 2002. 11. 00. 2001. 4. 0. 매매를 원인으로 하여 소유권이전등기를 마쳤다.

E. However, since the loan of this case was not registered as a non-registered building due to the relationship that did not undergo a pre-use inspection during that period, Defendant B completed the registration of ownership transfer as to the loan of this case (except for the real estate in attached Form 11) on January 00, 2006, after completing the registration of ownership transfer under its name on January 00, 2006, on February 00, 2006, the remaining Defendants except Defendant B (hereinafter referred to as “the Defendants”) except Defendant B, as stated in the purport of the claim.

2. Judgment on the plaintiff's primary claim

A. The plaintiff, as the primary cause of the claim, acquired ownership by completing 100% of the acquisition of all rights, such as the ownership of the above loan, on April 0, 1995, in lieu of the claim for construction price from A, and instead of the obligation to C, C, etc., and on this basis, the registration of preservation of ownership as described in the above 1. E., without any title by the defendant B, and the registration of preservation of ownership and the registration of transfer thereof are null and void. Thus, the plaintiff asserts that as the owner of the above loan, the plaintiff sought cancellation of the above registration against the defendants as the owner of the above loan.

B. However, in a case where a building project owner’s construction work was completed after it was transferred to another building and completed after the completion of the construction work, if it had a type and structure that can be seen as an independent building under social norms at the time of suspending the construction work, the original owner’s original owner acquires the ownership of the building. In this case, as seen in the above 1. A, as long as A obtained a construction permit as the owner, and had a structure and form that can be seen as an independent building under social norms at the time of suspending the construction work, as seen in the above 1. A newly constructed the instant loan through the construction business operator, including the Plaintiff, as the owner, etc., and had had the structure and form that the above loan had already been deemed as an independent building under social norms at the time of suspending the construction work, it cannot be said that A acquired the ownership of the above loan even if the Plaintiff had completed the construction after the completion of the construction work by acquiring the above loan, and thus, the Plaintiff’s above assertion based on the premise that the Plaintiff is the owner of the above loan is no longer reasonable.

3. Judgment on the plaintiff's conjunctive claim

A. The plaintiff asserts that the plaintiff of this case's loan of this case has a right to claim the registration of ownership transfer against A by acquiring all rights, such as ownership, from A as described in the above 2.A., and thus, the plaintiff claims the registration of ownership transfer against B for its preservation by subrogation, who is the owner of this loan, against the defendants to claim the registration of ownership preservation and the registration of transfer invalid.

나. 그런데, 원고가 甲으로부터 이 사건 빌라의 소유권 등 일체의 권리를 양도받았는지에 관하여 이에 부합하는 취지의 갑4호증, 갑10호증의 1, 2, 3의 기재와 증인 甲의 일부 증언은, 위 1.항 인정사실 및 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사정, 즉 ① 원고가 1995. 4. 0. 甲으로터 위 빌라의 소유권 등의 권리를 양도받은 것과 관련하여 이들 간에 그 당시 작성된 문서가 전혀 존재하지 않는 점, ② 갑4호증은 甲이 1995. 4. 0. 원고에게 공사대금지급에 갈음하여 위 빌라를 대물변제하였다는 내용을 2003. 1. 0. 원고에게 확인해 준다는 내용의 사실확인서이고, 증인 甲의 증언내용도 이를 뒷받침하는 정도에 불과한 점, ③ 그 당시 甲이 위 1.나.항 기재와 같이 이 사건 빌라 부지에 관하여 채권자 丙, 庚의 소유권이전등기청구권가등기가 되어 있고, 또 이들 채권자 및 여러 공사업자들에 대하여 수억원의 채무를 부담하고 있는 상태에서, 유독 원고에게 위 빌라의 소유권을 양도할 사정이나 까닭이 없어 보이고, 원고가 지급받지 못한 공사대금이 얼마인지 이렇다 할 자료를 제시하지 못하고 있는 점, ④ 만일 원고가 위 빌라의 권리를 양도받았다면, 그 동안 위 빌라의 소유권 및 등기관계를 정리하고, 거기에 입주하고 있던 공사업자들에게 권리주장을 하였을 법한데 그렇게 하지 않은 점 등에 비추어, 쉽사리 믿을 수 없고, 갑8호증의 일부 기재 만으로 이를 인정하기에 부족하며, 달리 이를 인정할 증거가 없으므로, 원고가 甲에게 위 빌라에 관한 소유권이전등기청구권을 가진다고 할 수 없다.

Therefore, the part of the conjunctive claim in the lawsuit in this case is the creditor subrogation lawsuit filed by the plaintiff on behalf of the owner for the purpose of preserving the right to claim the transfer registration of the ownership of the loan in this case. Thus, insofar as the plaintiff's right to claim the transfer registration of the ownership of the loan in this case is not recognized as the plaintiff's right to claim

4. Conclusion

Therefore, since the plaintiff's primary claim against the defendants is without merit, each of the plaintiff's primary claim is dismissed, and the conjunctive claim in this case is unlawful, and it is so decided as per Disposition.

The presiding judge, the Park Jae-soo

Judges Park Jae-in

Judges Jeong-jin