(영문) 서울서부지방법원 2015.4.8.선고 2014가합6015 판결

A. The defendant (the appointed party; hereinafter referred to as the "defendant") B shall receive on March 28, 2014 from the Seoul Western District Court.

ARTICLE *** The full transfer registration of shares completed under heading* b. The Appointed D shall receive on April 10, 2014 from the same court.

*** The full transfer registration of shares completed under heading *. (c) The Selection E shall receive on May 7, 2014 from the same court.

***** The full transfer registration of shares completed under heading*, D. The Appointed shall receive on May 20, 2014 from the same court.

**** the full transfer registration of equity completed under**, E. Defendant B shall receive on June 16, 2014 from the same court.

***** the full transfer registration of shares completed under**. (f) Defendant C shall receive on April 10, 2014 from the same court.

**** the registration of creation of a mortgage on the entire equity shares completed under heading** the registration of cancellation, the registration procedures for cancellation, 2. Defendant C

* The Plaintiff completed on March 28, 2014 with respect to the above portion of real estate in the court ***

The declaration of acceptance is made for the cancellation registration of the entire share transfer registration.

Reasons

1. Basic facts

A. Status of the party

The plaintiff is a school juristic person operating ○ University, which is a school juristic person operating ○○ University.

(hereinafter referred to as "non-party partnership") remove the previous building and apartment and neighborhood living facilities.

Land within the project site of the newly-built housing redevelopment project (hereinafter referred to as the “instant redevelopment project”);

member who owned the land, and the defendant was owned by the non-party partnership in the real estate auction procedure.

Land is a person who has acquired ownership after winning a contract.

B. Sales contract between the plaintiff and the non-party partnership

The plaintiff between the non-party union and the non-party union on April 28, 2005, and the plaintiff's Seodaemun-gu Seoul from the non-party union.

○○ Dong (hereinafter referred to as “Seomun-gu”) Nos. 33 - 65

113m in total or in whole area of nine parcels, such as a violation of Article 113m (the specific area by lot shall be the following table:

The sale price of this case is 2,00,000,000,000 won for 2,000,000

However, the non-party partnership will immediately issue a public notice of the transfer of the redevelopment project of this case to the Plaintiff.

Transfer of full ownership not restricted by provisional attachment, seizure, provisional disposition, limited real right, etc.

The sales contract was concluded with the intent to conclude the sales contract (hereinafter referred to as "the sales contract of this case").

C. Public notice of the transfer of the non-party partnership

A person shall be appointed.

1) The non-party partnership shall obtain the authorization and public notice of the modification of the management and disposition plan on December 29, 2005, following the authorization and public notice of the modification of the management and disposition plan.

7. Site under Article 54 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Act on the Maintenance and Improvement of Urban Areas");

In addition, the contents of the transfer of ownership of a building were publicly announced (hereinafter referred to as the "transfer public notice of this case").

2) Pursuant to the public notice of the transfer of this case, the land subject to the sale of this case is O-dong 144 - 2 school site

609m2 (hereinafter referred to as the "land of this case") was replaced with 609m2.

D. Acquisition of ownership in the procedure for compulsory auction by Defendant B

1) Meanwhile, ① OO-dong 33 - 61 Railroad site 23m, ② O-dong 33 - 65 p.m.

13m2, 3 ○○ Dong 33 - 68 2m2, 40 Odong 33 - 97 m2m2, 5 ○○ Dong

33 - 164 square meters for a railroad site: 68 ○○ Dong 58 - 321 meters for a railroad site; 7 ○○ Dong 60 - 14 - 66 m2. 8 square meters for a railroad site:

(8) Odong 60 - 41 x 19.8 m, 9 Odong 60 - 93 x 132 2m, etc. on nine parcels, including a square of origin, 2004

11. The commencement of the auction of this case by the court below 2004 Mata299 (hereinafter referred to as "the commencement of auction of this case")

The registration of the entry was completed, and the defendant B had the above nine parcels area in the auction case.

A total of 883. 8m2. 8m2. 8m2. 8m2006. 8m2. 8m2006.

2) Three parcels, such as ○○○-dong 33, 65, 33- 103, 58-3, among the lands on which Defendant B awarded the award.

The sum of each part of the area of 323mi (hereinafter referred to as the "former three parcels of this case") is as seen earlier.

It was included in the land subject to sale of this case and substituted with the land of this case.

E. Registration of ownership transfer of the instant land

1) On October 23, 2006, the non-party association made registration of ownership preservation in its name on the land of this case.

After completion, the registration of ownership transfer based on the sales contract of this case is completed on the same day.

was changed.

2) After that, Defendant B will substitute the previous three parcels of this case as part of the land in this case.

claim that the sale price was the acquisition of ownership of such shares by payment, and that this court

A Junior Administrative Officer in charge of the initial commission shall transfer the ownership of the land of this case and promote modification thereof.

The above junior administrative officer, etc. made a request for repair on April 9, 2013; however, he/she issued a disposition of repair on April 9, 2013.

C. Although Defendant B raised an objection, the court of first instance dismissed the objection on June 25, 2013;

The first instance court rendered a decision (this Court 2013 Doz. 505). Defendant B dissatisfied with the first instance court decision and filed an appeal.

J. The appellate court revoked the first instance court's decision on March 17, 2014 and revoked it against Defendant B.

323/609 shares in ownership (the area occupied by the previous three parcels of the land of this case out of the land of this case)

286/609/609) The registration of ownership transfer for the plaintiff shall be entrusted and all of the ownership transfer for the plaintiff shall be registered.

the court (2013Ra191) determines that a change is entrusted with the transfer of shares (this court),

Around that time, it became final and conclusive.

3) In accordance with the above order of the appellate court, with respect to share 323/609 of the land of this case, Defendant B shall be subject to this order.

Court No. 9910 received on March 28, 2014, No. 11757 received on April 10, 201, the Appointed E

5. 7. Receipt No. 14586, No. 14586, re-selected D shall be as No. 17331, May 20, and Defendant B shall be as No. 6. 16.

The defendant C completed the entire share transfer registration in succession with No. 20320, and the defendant C received No. 11756 of April 10, 197

The registration of the establishment of the entire shares was completed.

(f) Provisions 1 of relevant Acts;

Urban Improvement Act

Article 54 (Public Announcement, etc. of Transfer)

(2) A project operator who intends to transfer the ownership of a site and building under paragraph (1).

the head of the Si/Gun after publicly announcing the content thereof in the official bulletin of the local government.

(c) In such cases, a person who purchases a building site or structure shall do so on the day following the date public announcement thereof is made.

The ownership of a building shall be acquired.

Article 55 (Confirmation of Rights to Sites and Structures)

(1) Any person who purchases a building site or structure by lots shall transfer its ownership under Article 54 (2).

In the case of superficies, lease on a deposit basis, mortgage, lease, security interest for provisional registration established on the previous land or building;

Ownership of registered rights, such as provisional seizure, and the right of lease satisfying the requirements under Article 3 (1) of the Housing Lease Protection Act;

shall be deemed to have been established in the relocated site or building.

(2) Site or structure acquired under paragraph (1), which is sold to the owners of lands, etc.

Any building shall be deemed a land substitution conducted under Article 40 of the Urban Development Act, and the provisions of Article 48 (3).

The reserved land under the provisions of the Urban Development Act and the site or building sold to the general public shall be stipulated in Article 34 of the Urban Development Act

The reserved land or the land allotted by the authorities in recompense for development outlay shall be regarded.

Urban Development Act

Article 34 (Land Secured for Development outlay, etc.)

(1) Any implementer shall appropriate funds for expenses incurred in an urban development project or for rules, articles of incorporation, implementation rules, or implementation limits.

may be designated as reserved land without designating a certain land as a substitute land for the purposes set forth in the

In addition, some of them may be designated as land allotted by the authorities in recompense for development outlay and appropriated for expenses incurred in urban development projects.

Article 40 (Omission of Entry)

Article 42 (Effect of Land-Substitution Disposition)

(1) Replotting determined in a replotting plan shall be the previous land from the date following the date a replotting disposition is publicly announced.

In regard to land rights in the previous land for which replotting is not determined in the replotting plan, the replotting disposition shall be publicly announced.

shall be extinguished upon the expiration of the period specified in paragraph (1).

(5) An implementer of a land allotted by the authorities in recompense for development outlay under Article 34 and a person specified in a replotting plan for reserved land, respectively.

Ownership shall be acquired on the day following the date public notice is given: Provided, That it has been already disposed of pursuant to Article 36 (4).

The land allotted by the authorities in recompense for development outlay shall acquire the ownership when its purchaser completes the registration of ownership transfer.

[Ground of Recognition] In without dispute, Gap evidence Nos. 1, 4, and 5, and Eul evidence No. 4 (with number)

(including a branch number), the purport of the whole pleading

2. The assertion and judgment

A. The plaintiff's assertion

Of the land in this case, the transfer of shares made on March 28, 2014 by Defendant B with respect to 323/609 shares on the land in this case

for the following reasons, and the shares of the Defendants and designated parties have been made.

Since all of the pre-registration and the establishment registration of a neighboring mortgage are invalid, the plaintiff is the owner of the land of this case.

of the Defendants and the designated parties have expressed their intent of acceptance with respect to the cancellation or cancellation thereof.

1) The public notice of transfer is an enforcement act against the management and disposition plan, and the site and land created by the rearrangement project.

It is an administrative disposition to transfer ownership of a building, etc. to a purchaser of the building, etc.

The land of this case in the land substitution confirmation protocol clearly stated that it is owned by the plaintiff, the effect of the public notice of transfer

As a history, the Plaintiff acquired the ownership of the instant land.

2) A non-party partnership that acquired ownership of the land of this case in accordance with the public notice of the transfer of this case

Article 55 Section 1 of the Act on the Maintenance and Improvement of Urban Areas, even if the land of this case is land allotted by the authorities in recompense for development outlay or reserved land

Not a port, Article 55(2) of the Urban Improvement Act, and Article 42(1) of the Urban Development Act shall apply to the Hamop

Ro. The plaintiff who completed the registration of ownership transfer from the non-party partnership

It acquired a complete ownership without restrictions such as the registration of the decision to commence auction.

3) The management and disposition plan of the non-party partnership is the land of this case on which the registration of the decision to commence the auction of this case

Since the management and disposition plan and subsequent plan are stipulated to be transferred to other land that is not such land.

The decision to commence the auction of this case was transferred only to other land according to the transfer announcement.

4) Even if Article 55(1) of the Urban Improvement Act applies with respect to the instant land,

It is limited to a "decision to commence auction" and a subsequent auction procedure such as a decision to permit sale.

of this case, the previous three parcels of this case and the land of this case have no legal basis for the transfer thereof.

323/609 Shares are identical as objects to sale, because the land's land's point, shape, location, etc. are different.

As the subject matter of sale is entirely lost and substantially changed, Defendant B’s representation

No gold payment shall be effective.

B. Determination

1) The Plaintiff acquired ownership of the land of this case in accordance with the public notice of the transfer of this case

whether or not

According to the above evidence, the report on the confirmation of land substitution in the public notice of the transfer of this case (determined land) is prepared.

of this case’s land size ? Plaintiff’s non-party partnership ? in the remarks column of the land of this case’

However, the non-party partnership acquired the ownership of the land of this case and transferred it to the plaintiff.

The plaintiff is merely interpreted as having acquired the ownership of the land of this case directly.

The plaintiff's above assertion is without merit without further review. The plaintiff's assertion is without merit.

2) The latter part of Article 55(2) of the Act on the Maintenance and Improvement of Urban Areas, as land secured by the authorities in recompense for development outlay or reserved land

Whether the latter part of Article 42 (1) of the Si Development Act is applied or not.

Article 55 (1) of the Act on the Maintenance and Improvement of Urban Areas and the previous land or building as a result of the implementation of an urban rearrangement project.

A new land or building substituted for a stable is sold to members only when it is sold in lots.

not, but a partnership by owners of new land or buildings in lieu of the previous land or buildings

such new buildings, etc. also become reserved land or land allotted by the authorities in recompense of development outlay shall be deemed as they are applicable.

(1) The court below held that the land of this case was non-party to this case on May 6, 2013

It is not subject to Article 55(1) of the Act on the Maintenance and Improvement of Urban Areas as land allotted by the authorities in recompense for development outlay or reserved land

The plaintiff's assertion of this part on the premise is without merit.

3) The effect of the decision on commencing the instant auction was transferred to another land according to the management and disposition plan.

whether or not

The management and disposition plan and transfer announcement under the Urban Improvement Act are the acquisition of rights and changes in itself.

In addition, it is objectively against the previous land after the maintenance and improvement project.

The disposition by which the location and scope of the land or building facilities to be determined are verified by a large person;

acquisition of rights due to the transfer announcement and the legal effect of the change shall be subject to the direct provisions of the law.

As seen earlier, the ownership of the previous three parcels of this case is determined by urban development.

As long as part of the instant land was transferred in accordance with Article 54 of the Non-Act, the instant case

Right based on the decision to commence compulsory sale of this case and the registration of entry of seizure, etc., which existed in the previous three lots.

section 55(1) of the Act on the Maintenance and Improvement of Urban Areas, directly, the share of a part of the land of this case

to be deemed to have been transferred. Accordingly, the management and disposal plan and the transfer order of the instant rearrangement project

Part that results in the separation of ownership and seizure rights in violation of the above statutory provisions of the City

as long as there is no effect, and the effect of the transfer of rights directly pursuant to the provisions of the law is generated.

It does not require any modification or cancellation of a management and disposition plan or a transfer announcement, so it does not require any modification or cancellation thereof.

We do not accept the Plaintiff’s assertion on this premise.

4) Whether the auction procedure after the decision on commencing the auction of this case was null and void

Even if there is any defect in the sale procedure, the procedure for compulsory auction is so serious that the defect is void.

The nature of the sale procedure and the certainty and stability of the procedure under the public law, so long as it does not reach the degree of

in light of the request of the court, the decision to permit sale has been finalized and the buyer has paid the price.

the buyer's acquisition of ownership by asserting the invalidity of the permit for sale in a separate lawsuit outside the auction procedure;

section 54 and section 55(1) of the Act on the Maintenance and Improvement of Urban Areas, as seen earlier, shall be subject to the provisions of section 55(1).

D. The ownership of the previous three parcels of land of this case is transferred to some shares, etc. of the land of this case and this company

The registration of the decision to commence the auction of this case entered in the previous three lots, etc. also some shares of the land of this case.

As the transfer was made, the former part of Article 55(2) of the Urban Improvement Act and Article 40 of the Urban Development Act.

land, buildings and the land in this case within the substantial meaning, even if the land is not 'land substitution';

The identity is recognized between the parties. Furthermore, as long as the registration of the decision on commencing auction has been effective, subsequent Sections

The question of legality of only the tea is nothing more than compelling the repetition of an unfavorable procedure.

In conclusion, the circumstances asserted by the Plaintiff are all the auction procedures after the decision to commence compulsory sale of this case.

It cannot be deemed that there is a defect in the degree of invalidation. The plaintiff's above assertion is rejected.

(c)

3. Conclusion

Thus, the plaintiff's claim is without merit, and all of the claims are dismissed. It is so ordered as per Disposition.

shall be determined.

Judges

Judges Lee Lee-chul-chul

Judges Choi Gyeong-hoon

Judges Kang Jeong-hee

Note tin

1) It should be based on the law that was in force at the time of the initial announcement of the transfer of this case; however, as to the issues at issue, it is between the former and the current law.

There is no essential difference in the content of the provision (only there is a change in the location of the provisions of the Urban Development Act). The parties are also based on the current law.

Since this is administered, the provisions of the current law are stated.