Plaintiff 1 and one other (Law Firm Han, Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Defendant 1 and seven others (Attorney Park Jae-ok, Counsel for the defendant-appellant)

March 10, 2011

Seoul Southern District Court Decision 2009Kahap3020 Decided December 1, 2009

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

1. Revocation of a judgment of the first instance;

2. Defendant 1, 3, 4, 5, 6, 7, and 8 are against Plaintiff 1:

Each [Attachment 1] The term "illegal Enrichment" shall pay the money recorded as unjust enrichment and 5% interest per annum from March 10, 2007 to the date of the pronouncement of the first instance judgment of this case, and 20% per annum from the next day to the date of full payment; and

From March 10, 2007 to March 26, 2008, each month (attached Form 1) shall pay the money stated in the “monthly”.

3. The Defendants were to Plaintiff 2:

From March 27, 2008 to the date of the Plaintiff 2’s loss of ownership or the date of the Defendants’ completion of possession, each month (attached Form 1) shall pay the money stated in the “monthly”.

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by taking into account each description of Gap evidence Nos. 1, 5, 9, 10, 11, Eul evidence Nos. 4 through 9, Eul evidence Nos. 2 (including each number), and the testimony of non-party No. 2 of the trial witness and the whole purport of the arguments as to defendant No. 4 of the trial court.

[1]

In January 1984, 1984, ○○ and Nonparty 1 and Nonparty 2 newly constructed a building of 2 underground floors - ground 4 underground floors, such as that described in paragraph 1.

Around November 1, 1984, registration of preservation of ownership was completed in the name of Nonparty 1 and Nonparty 2 due to a commission of registration of application for compulsory auction and registration of registration of registration of registration of registration of application for compulsory auction with respect to the boiler room of 183.03 square meters and underground 2 square meters among the above buildings (attached Form 2) (hereinafter “instant part”).

○○ Non-Party 1 and Non-Party 2 divided the portion of the instant 1st floor into 20 stores, and prepared a specific divided drawing of the number, location, and size of the stores, and sold the stores in accordance with the divided drawing (hereinafter the above 20 stores referred to as “instant 20 stores”).

In the sale of shares, such as ○○, Nonparty 1 and Nonparty 2 shared shares in the portion of the first floor of this case for each store, and completed the registration of ownership transfer in the future for the buyers of the shares allocated as such (hereinafter “share shares in the portion of the first floor of this case”).

Pursuant to ○○, the number of the instant 20 stores and those who take over the said 20 stores have completed the registration of ownership transfer with respect to the co-owned shares allocated as above, and as such, the number, location, and area of the said 20 stores were occupied and used independently each time in accordance with the aforementioned divided drawings.

[2]

○○, Nonparty 1 and Nonparty 2 specified the store No. 6 (attached Form 2) at the bottom of the left-hand side of the instant 20 stores, and allocated shares of co-ownership 58.58/502.14 on this basis, set up a collateral security right in the future of the Promotion Mutual Aid and Finance Company (hereinafter “Promotion Mutual Aid and Finance Company”) for the purpose of establishing it in December 27, 1985.

After ○○○, Nonparty 1 and Nonparty 2 specified the store No. 6 (Attached Form 1) as “(A)” on the left-hand side, and allocated shares of 60.79/502.14 to Nonparty 3, who agreed to sell the shares to Nonparty 3 on March 4, 1986, and completed the registration of ownership transfer in the future of Nonparty 3 with respect to co-ownership on March 4, 1986.

As above, the part (attached Form 2) signed and sealed on the lower left-hand side of the left-hand side and affixed "(A)" at the lower-hand side of the above (attached Form 1) was identical in both the number, location, and area.

○○ Nonparty 3 completed the registration of ownership transfer in the future of Plaintiff 1 on March 4, 1986 as to his share of 60.79/502.14, which completed the registration of ownership transfer in his future.

[3]

However, on December 20, 198, the Promotional Fund has completed the registration of ownership transfer based on the successful bid in its future with respect to the above 58.58/502.14 shares on December 20, 198.

After ○○, the Promotion Fund completed the registration of ownership transfer in the future between Defendant 2 and Nonparty 4 on January 5, 1989 with respect to co-ownership of the above 58.58/502.14.

Then, on November 12, 2001, Nonparty 4 completed the registration of ownership transfer on his own shares among the co-ownership shares of 58.58/502.14 on November 12, 2001.

Pursuant to ○○, from around 1989, Defendant 2 and Nonparty 4 independently occupied and used the store No. 6, and Defendant 2 occupied and used the store No. 6 independently from around 2001.

[4]

On the other hand, the plaintiff 1 completed the registration of ownership transfer from the non-party 3 on March 4, 1986, and the plaintiff 1 did not occupy and use the non-party 6 store after the completion of the registration of ownership transfer as above and did not have the right proposal related thereto.

On April 3, 2007, when Plaintiff 1 completed the registration of ownership transfer as seen above, Defendant 2, who independently occupied and used the said store No. 6, filed a lawsuit claiming the return of unjust enrichment due to the possession and use of the store No. 2007Gahap6339, Seoul Southern District Court Decision 2007Dahap6339, supra.

On March 27, 2008, 2008, ○○ Plaintiff 1 completed the registration of ownership transfer in the future of Plaintiff 2 on the co-ownership share of 60.79/502.14, which completed the registration of ownership transfer in the future.

[5]

On the other hand, the non-party 1 and the non-party 2 independently occupied and used the store Nos. 10 and 11 among the 20 stores of this case. After the decision of the first instance court of this case, the non-party 2 delivered the above store to the plaintiff 2, and on June 15, 2010, the plaintiff 2 leased the above store to the non-party 5.

The remaining Defendants, except Defendant 2, have acquired the remainder of the 20 stores among the 20 stores of this case, other than those set forth in subparagraphs 6, 10, and 11, from Nonparty 1 and Nonparty 2, or take over the store from the buyers. As to the co-ownership shares allocated by Nonparty 1 and Nonparty 2 as above, they completed the registration of ownership transfer and independently occupy and use each of them as indicated below.

1. Defendant 57.43/502.14, Defendant 502.14, Defendant 55/502.14 on April 6, 258.625.62/502.502.14, Defendant 6, 3154/502.14, Defendant 74.05/502.14, Defendant 44.26/502.14, Defendant 823.75/505/50.14 on April 8, 223, 502.14

2. The plaintiffs' assertion

The difference in the store No. 6 is KRW 100,807,513 from May 10, 1996 to February 9, 2007, and KRW 1,159,056 from February 10, 2007. The plaintiffs were not in possession or use of the store No. 6.

Therefore, the remaining Defendants except Defendant 2 are obligated to return to Plaintiff 1 the amount corresponding to the remaining Defendants’ co-ownership share as unjust enrichment with respect to the rent from March 26, 2008 that Plaintiff 1 transferred to Plaintiff 2 his co-ownership of the said rent to Plaintiff 2.

In addition, the Defendants are obligated to return to Plaintiff 2 the amount corresponding to the Defendants’ co-ownership share as unjust enrichment for the rent from March 27, 2008 when Plaintiff 2 acquired co-ownership shares.

3. Determination

A. (1) According to the above facts, Nonparty 1 and Nonparty 2 newly constructed a building of the 20th underground floor and partitioned the part of the 1st floor of this case into the 20 stores of this case among the buildings, and then prepared a specific divided drawing of the number, location, and size of the stores, and sold the stores in accordance with the divided drawing. Nonparty 1 and Nonparty 2 allocated co-ownership shares to each store in the above sales of this case, and completed the registration of ownership transfer for the co-ownership allocated, and as a result, completed the registration of ownership transfer for the co-ownership allocated by the buyers of the 20 stores of this case and the transferee of the store from the buyers of the 20 stores of this case, and as such, occupied and used the number, location, and size of the stores in accordance with the divided drawing independently from each other.

(2) According to the above circumstances, the co-ownership relationship was established with respect to the portion of the first floor of this case, and the co-owners of this case agreed to specify the number of houses, location, and size of the non-party 1 and the non-party 2, and to occupy and use the 20 stores of this case independently in the state of parcelling-out by allocating co-ownership shares based on the dividing drawing.

Therefore, if the number of buyers or those who take over the 20 stores of this case occupy and use the 20 stores independently in the state of sale by Nonparty 1 and Nonparty 2, it would be difficult to obtain profits from the other co-owners' property or labor and thereby would not inflict losses on the other co-owners. Thus, barring any special circumstance, the other co-owners are not obliged to return unjust enrichment due to such possession and use.

B. (1) However, according to the above facts, the non-party 1 and the non-party 2 specified the store No. 6 (attached Form 2) at the bottom of the left-hand side of the 20 stores of this case, and allocated shares of 58.58/502.14 to this end, the registration of creation of mortgage over the above co-ownership shares was completed in the future of the Promotion Fund. After the △△ Fund's implementation of the above right to collateral security and completion of the registration of creation of mortgage on the above co-ownership shares, the above co-ownership shares was completed in the future, and the non-party 2 and the non-party 4 completed the registration of ownership transfer on the above co-ownership shares, and completed the registration of ownership transfer on the above co-ownership shares, and the non-party 2 and the non-party 4 independently occupy and use the store No. 60, from around 1989 to the non-party 201, and acquired the remaining co-ownership shares from the defendant 1 and the non-party 2.

(2) If so, the Defendants independently occupied and used the relevant store in the state of sale by Nonparty 1 and Nonparty 2. Thus, barring any special circumstance, the Defendants do not bear the obligation to return unjust enrichment due to such possession and use against other co-owners.

C. (1) As above, Nonparty 1 and Nonparty 2 specified the above 6 store as 60.77 square meters on the left-hand side of the 20th 5th 5th 6th 5th 7th 7th 7th 7th 5th 5th 5th 500 6th 600, and assigned the co-ownership share on 58.58/502 14th 58th 1985, and they completed the registration of the establishment of a mortgage on 4th 5th 8th 5th 5th 6th 5th 6th 5th 6th 5th 7th 5th 600 6th 7th 5th 5th 198, and the above co-ownership share was sold to Nonparty 3 on the left-hand side of the 3th 4th 5th 5th 5th 6th 1986, and the above co-ownership share was sold to Nonparty 1 and the above co-owned share.

(2) According to the above circumstances, the non-party 1 and the non-party 2 set up a right to collateral security in the future with the promotional safe, and sold the non-party 6 store to the non-party 3, but due to the execution of the above right to collateral security, the non-party 3 cannot assert the right to the non-party 6 store, and the non-party 1 and the non-party 2 can claim damages, etc. against the non-party 6 store.

The plaintiff 1 filed a lawsuit against the defendant 2, who did not occupy and use the 6 store after the completion of the registration of ownership transfer with the non-party 3 on March 4, 1986, and did not have the right owner with respect to the 6 store, as seen above, on April 3, 2007 when about 21 years passed since the completion of the registration of ownership transfer, against the defendant 2, who did not independently occupy and use the 6 store on April 3, 2007, the Seoul Southern Southern District Court 2007Gahap6339 decided Gahap639 decided on March 6, 1987, seeking the return of unjust enrichment from the possession and use of the 6 store. As seen above, since the non-party 3 could not claim the right to the 6 store, it is more likely that the plaintiff 1, who completed the registration of ownership transfer from the non-party 3, could not claim the right to the 6 store.

In addition, as seen earlier in the facts of recognition, Nonparty 1 and Nonparty 2 did not sell the store Nos. 10 and 11 among the 20 stores of this case, and Nonparty 2 independently occupied and used it, and Plaintiff 2 delivered the said store to Plaintiff 2 and leased the said store to Nonparty 5 on June 15, 2010 after the judgment of the first instance court of this case was rendered. As seen above, Nonparty 3 was unable to assert the right to the store Nos. 6 and was able to claim damages, etc. against Nonparty 1 and Nonparty 2, who sold the said store to Nonparty 6. Thus, it is reasonable to view that Plaintiff 2 transferred the shares of Nonparty 3 through Plaintiff 1 through Nonparty 1, who was delivered the said store Nos. 10 and 11 as compensation for damages.

(3) Meanwhile, according to the aforementioned evidence, the court below rendered a judgment dismissing Plaintiff 1’s claim on July 20, 2007 in the above Seoul Southern District Court case No. 2007Gahap6339 against Defendant 2. The reason was that the shop No. 6 could not be readily determined as Plaintiff 1’s ownership. The judgment accepting part of Plaintiff 1’s claim against Defendant 2 on November 5, 2008 in the Seoul High Court No. 2007Na7807 decided on November 5, 2008, which appealed against Plaintiff 1, which partly accepted Plaintiff 1’s claim against Defendant 2. The reason was that there was an implied agreement among the other co-owners except Plaintiff 1, who owned and used the store No. 6, and Plaintiff 1 did not occupy and use it, and thus, Defendant 2 was obligated to pay the amount equivalent to the above Plaintiff 1’s co-ownership shares to Defendant 201.

However, as seen in the above purport of the claim, the plaintiff 1 did not make a claim against the defendant 2 against the other defendants except the above defendant 2, and the plaintiff 2 filed a claim against all defendants including the defendant 2. Thus, the res judicata effect of the above final and conclusive judgment against the plaintiff 1 against the defendant 2 does not affect this case, and in this case, it can be determined based on a separate fact-finding as to the rights against the remaining defendants except the plaintiff 1's defendant 2 and the rights against all defendants including the plaintiff 2.

D. (1) According to the above above, the non-party 1 and the non-party 2 sold the non-party 6 store to the non-party 3, the plaintiff 1 completed the registration of ownership transfer from the non-party 3, and the plaintiff 2 completed the registration of ownership transfer from the plaintiff 1. Since the non-party 3 cannot assert the right to the non-party 6 store due to the bid of the non-party 6 store, the non-party 1 who completed the registration of ownership transfer from the non-party 3 cannot claim the right to the non-party 6 store against the non-party 2, and the plaintiff 2 who completed the registration of ownership transfer from the plaintiff 1 cannot claim the right to the non-party 6 store against all the defendants including the defendant 2.

(2) In addition, when co-ownership relation was established with respect to the portion of the first floor of this case, the co-owners agreed that the non-party 1 and the non-party 2 should possess and use each of the 20 stores of this case independently. Thus, the non-party 3 who purchased the 6 store from the non-party 1 and the non-party 2 cannot claim the right to the store other than the 6 store, and therefore, the plaintiff 1 and the non-party 2 cannot claim the right to the store other than the 6 store.

(3) However, without filing a claim against Defendant 2 who occupied and used the store No. 6, Plaintiff 1 sought to return the amount equivalent to the rent of the store No. 6 to the remaining Defendants who occupied and used the store other than the store No. 6, and Plaintiff 2 sought to return the amount equivalent to the rent of the store No. 6 to all Defendants including Defendant 2 as unjust enrichment. Thus, the Plaintiffs’ above claims are all without merit.

4. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in its entirety due to the lack of reason, and the judgment of the court of first instance is just, and the plaintiffs' appeal is dismissed in its entirety. It is so decided as per Disposition.

[Attachment]

Judge Cho Young-young (Presiding Judge)