Cases Real Estate Trust Co., Ltd. (Law Firm Civil and one other, Counsel for the plaintiff-appellant)

Defendant 1 and one other

Defendant 3 Stock Company

Defendant 4 (Attorney Lee Chang-chul et al., Counsel for the defendant-appellant)

July 2, 2013

1. Defendant 2:

(a) 26,846 square meters prior to Gwangju City ( Address 1 omitted);

(1) On the ship that connects each point in sequence 9, 10, 11, 12, and 9 attached Form 9, 10, 11, 12, and 9;

(2) On board a ship which connects each point of 13, 14, 15, 16, and 13 of the same drawing indication. (3) Part 191 square meters of ground block structure;

(3) On board a ship which connects each point of 17, 18, 19, 20, 17 of the same drawing indication. (4) Part 125 square meters above ground pipe building;

(4) In the ship that connects each point of 21, 22, 23, 24, and 21 indicated in the same drawing(5) part of 163 square meters above ground;

(5) On board a ship which connects each point of 25, 26, 27, 28, and 25 indicated in the same drawing(s) 6 m2,00 square meters;

(6) A ship which connects each point of 29, 30, 31, 32, and 29 indications of the same drawing (7) a part of 18 square meters on board;

(7) Article 33, 34, 35, 36, and 33 of the same drawing indication: (8) Annexed concrete brick buildings attached to 7m2 square meters on board are connected in sequence;

(8) In order to connect each point of 37, 38, 39, 40, 37, the same drawing indication, (9) part 9m2 square meters ground brickd building toilets;

(9) In the order of 41, 42, 43, 44, and 41 of the same drawings, part 00 m20 m20 m20

each removal,

B. In the order of indication 2,3,4,5,30,29, 28, 27, and 1,914 square meters in the attached Form No. 2, 2, 3, 4, 5, 30, 29, 28, 27, and 2 of the previous 26,846 square meters in Gwangju City ( Address 1 omitted), the part of the land (excluding part 1,08 square meters in the ship) connected in the order of each point in the attached Form No. 1,2, 3, 4, 5, 6, 7, 8, and 1

C. From August 30, 2012 to June 27, 2013, 44,787,600 won and interest thereon, 5% per annum from August 30, 2012 to June 27, 2013, and 20% per annum from the next day to the date of complete payment, and 3,956,238 won per annum from August 31, 2012 to the time of completion of the delivery of the land described in the above paragraph (b).

2. The primary defendant 3 corporation shall leave the plaintiff from each obstacle described in paragraph 1 (a) to the plaintiff.

3. The plaintiff's respective claims against the defendant 1 and the preliminary defendant 4 and all remaining claims against the defendant 2 and the primary defendant 3 are dismissed.

4. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant 1 and Defendant 4 is borne by the Plaintiff, and the part arising between the Plaintiff, Defendant 2, and Defendant 3 are borne by the Plaintiff, and the remainder is borne by the said Defendants, respectively.

5. The above paragraphs 1 and 2 can be provisionally executed.

1. Claim against Defendant 1;

Defendant 1 paid money at the rate of KRW 223,266 per annum from August 30, 2012 to June 27, 2013, based on (3) 2, 527,200 per annum and 20% per annum from the following day to the date of full payment, among the items indicated in the attached table No. 1, 2, 3, 4, 5, 6, 7, 8, and 1 among the items of the attached table No. 26,846 square meters in Gwangju-si ( Address 1 omitted), to the Plaintiff.

2. Claim against the defendant 2

Defendant 2: (1) Defendant 2: (a) and (2) of the Disposition No. 1; (b) deliver to the Plaintiff the amount of money in attached Form 2,3,4,5,6,7,7,8,9,36,35,34,33,32,30,30,29,28,27, and 27, in sequence, among the land in attached Form 2, 3, 4, 5, 6, 8, and 26,00 square meters prior to Gwangju-si ( Address 1 omitted); (3), 2,726 square meters from the date following that of the three-dimensional land (excluding the land in attached Form 1,2,3,4,5,6,7,8, and 1; (b) deliver the money in proportion to the annual amount of money in attached Form 36,78,408,200 to the date of complete delivery; and (c) pay 63,520,000 won to each of the said land from 203.1.

3. Claim against Defendant 3 and Defendant 4

(1) The Plaintiff: (a) the Defendant 3 Co., Ltd., primarily and in the order of paragraph (2) of this paragraph and paragraph (b) of this Article, connects each point of (1), 2, 3, 4, 5, 6, 7, 8, and 1 in the attached Form No. 1, 2, 4, 6, 7, 8, and 1 of the attached Form No. 26,846 square meters prior to Gwangju City ( Address 1 omitted); (b) the Defendant 4, in the preliminary order, shall leave from the house of reinforced concrete structure on the ground of 108 square meters in the attached Form No. 1,2, 3, 4, 5, 6, 7, 8, and 1 of the attached Form No. 26,846 square meters prior to Gwangju City ( Address 1 omitted); and (c) the Defendant 4, in the order of the removal from each obstacles described in

1. Basic facts

The following facts are not disputed between the parties, or acknowledged based on Gap evidence 1-4, Gap evidence 2, Eul evidence 7, Eul evidence 2, Eul evidence 4-1 and Eul evidence 4-2, the result of the on-site inspection by this court, the result of the survey appraisal by non-party 8, and the purport of all pleadings.

A. Ownership of the instant land

(1) The previous 29,630 square meters prior to Gwangju City ( Address 1 omitted) was divided into the land of December 22, 2003, May 9, 2005, and February 22, 2008 (hereinafter “instant land”) and the same ( Address 2 omitted), address 3 omitted, ( Address 4 omitted), ( Address 5 omitted), and ( Address 6 omitted) land.

(2) On August 31, 2011, the Plaintiff completed the registration of ownership transfer for the instant land by reason of the trust from the Solomon Savings Bank, the Busan Solomon Savings Bank, the Gyeonggi Solomon Savings Bank, the Gyeonggi Solomon Savings Bank, the Co., Ltd. (hereinafter collectively referred to as “Slolomon Savings Bank”), and the prior matters on the change of ownership are as follows.

Non-party 13, non-party 7 (each co-owned share 1/2) on June 26, 1987, which is the cause of the change in ownership on the date of the transfer of ownership, contained in the main sentence, and Non-party 2, non-party 2 on September 14, 1999 on September 27, 199, the non-party 3, non-party 1 on August 26, 2002, the successful bid 4 Korea Asset Trust Co.,, Ltd. on August 26, 2002 on August 26, 2002 on August 16, 2008, the non-party 1, October 28, 2008, to whom the trust property belongs on October 28, 2008, the non-party 2, the trust property on August 26, 2002 on August 26, 2002.

B. Possession of the surface obstacles to the instant land and the possession of the instant land

(1) On December 17, 2001, Defendant 1 acquired the ownership of a house built on the ground of reinforced concrete (hereinafter “instant housing”) with a part of 108 square meters (hereinafter “instant part of land”) connected in order to each point of the attached table Nos. 1, 2, 3, 4, 5, 6, 7, 8, and 1 among the instant land, in the order of indication of the attached map Nos. 1, 2, 3, 4, 6, 7, 8, and 1.

(2) Defendant 2 is obligated to connect part of the instant building with each point of 108 square meters in sequence, among the instant land. (2) The building without walls on ground, which is 108 square meters and connected to each point of 191 square meters in order of 17, 18, 19, 20, and 17; (3) the part of the instant building with 34 square meters connected to each point of 34 square meters in order of 163 square meters; (4) the part of the instant building with 3 square meters connected to each part of the instant building; (3) the part of the instant building with 3 square meters connected to each point of 44 square meters in sequence; (4) the part of the instant building with 3 square meters in order of 21,22,23,24,21 square meters; and (5) the part of the instant building with 3 square meters connected each point of 163 square meters or less; (7) the part of the instant building with 363 square meters connected each part of the instant building;

(3) Meanwhile, Defendant 3 Co., Ltd (representative director Defendant 4) occupies the instant housing and each obstacles as of the date of closing argument of the instant case with the consent of Defendant 1 and Defendant 2.

2. Determination as to the claim against Defendant 1

A. Determination on the cause of the claim

According to the above facts, Defendant 1, the owner of the instant housing, is obligated to remove the instant housing and deliver the instant land to the Plaintiff, who is the owner of the instant land, and return unjust enrichment equivalent to the rent due to the possession thereof, unless there are special circumstances.

B. Determination as to Defendant 1’s assertion

(1) Defendant 1 asserts that since Nonparty 2 purchased the instant house on October 11, 1989 and occupied the instant land with the intention of possession for not less than 20 years through Nonparty 4 after the commencement of occupation on the instant part, Defendant 1 asserted that it cannot respond to the Plaintiff’s request.

(2) Upon completion of the acquisition by prescription, the possessor may file a claim against the nominal owner for the implementation of the procedure for the registration of ownership transfer for the completion of the acquisition by prescription. Since the nominal owner is obligated to comply therewith, even if the ownership was not acquired because he did not complete the registration of ownership transfer under his name, the nominal owner may not file a claim against the possessor for the return of unjust enrichment due to removal of the ground building, delivery of the land, and possession on the ground that it is an illegal possession of the land (see, e.g., Supreme Court Decisions 87Meu1979, May 10, 198; 92Da51280, May 25, 1993).

In addition to the above statements Nos. 5-1 and 2 and the testimony of Non-Party 2, it is recognized that Non-Party 2 completed the registration of ownership transfer for the housing of this case from Non-Party 6 on October 11, 1989. The non-party 4 completed the registration of ownership transfer for the housing of this case from Non-Party 2 on October 9, 1995. The registration of ownership transfer was completed on October 7, 1995 with respect to the housing of this case from Non-Party 4 on December 17, 2001. The non-party 1 completed the registration of ownership transfer from Non-Party 4 on December 17, 2001 to Non-Party 4 on December 1, 2001. In light of the above legal principles, the non-party 2, non-party 4, and the non-party 1 occupied the housing of this case by occupying the land of this case, and the non-party 1 was presumed to possess the land of this case as the land of this case.

Therefore, Defendant 1’s above assertion pointing this out is with merit, and the Plaintiff’s assertion against Defendant 1 is without merit.

C. Judgment on the Plaintiff’s assertion

(1) As to this, the Plaintiff asserted that, from September 27, 1994, Nonparty 2 purchased the instant land from Nonparty 3 and Nonparty 7, and completed the registration of ownership transfer on October 14, 1999, and that, although the instant housing was actually located on the ground of the instant land, it is registered as located on the ground of the Gwangju-gun Gwangju-gun Gwangju-gun, Gwangju-gun, a copy of the register, even though the instant housing was actually located on the ground of the instant land, Nonparty 2, at least before September 27, 1994, did not have any legal title until the purchase of the instant land was made, constitutes another owner who occupied the instant housing site with the knowledge of the fact that there

In light of the overall purport of the statement and pleading, Gap evidence No. 1-4, Eul evidence No. 1-2, No. 4-1-2, and Eul evidence No. 1-2, and Eul evidence No. 1-2, which were recorded on the land of Gwangju-gun, Gwangju-gun. The non-party No. 2 was found to have completed the registration transfer registration for the land of this case which was actually located on Oct. 14, 1999 with respect to the non-party No. 3 and non-party No. 7 on Sep. 27, 1994. However, according to the above facts, the non-party No. 9 was actually located on the land of this case as well as the non-party No. 2, the non-party No. 9-2, who purchased the land of this case on Oct. 11, 1989, and the non-party No. 9-2, who purchased the land of this case on Oct. 9, 1989.

Therefore, this part of the plaintiff's assertion is without merit.

(2) In addition, the Plaintiff asserts to the effect that, even if Defendant 1 acquired by prescription the land of this case on October 11, 2009, the Plaintiff cannot claim the completion of the acquisition by prescription against the Plaintiff on August 31, 201, since Nonparty bank completed the registration of ownership transfer on the land of this case including the above part of land, between the non-party bank and the non-party bank did not complete the registration of ownership transfer.

On the other hand, even if the acquisition by prescription has been completed due to the possession of real estate, the possessor cannot oppose the third party to the acquisition by prescription if the transfer of ownership is completed with respect to the real estate without registration. However, the possessor does not lose the right to claim the transfer of ownership due to the prescriptive acquisition against the owner at the time of the completion of the acquisition by prescription, but merely becomes unable to perform the right to claim the transfer of ownership against the owner at the time of the completion of the acquisition by prescription. Thus, if the ownership is restored to the owner at the time of the completion of the acquisition by prescription for any reason thereafter, the possessor may claim the effect of the prescriptive acquisition against the owner (see Supreme Court Decision 93Da42016, Feb. 8, 1994, etc.). In this case, the owner of the land at issue at the time of October 11, 2009, and thereafter, on August 31, 2011, the Plaintiff asserted the effect of the transfer of ownership on the land at the time of the completion of the acquisition by prescription.

3. Determination as to the claim against Defendant 2

A. Determination on the cause of the claim

(1) Claim for removal of each of the obstacles of this case

According to the above facts, Defendant 2, the owner of each of the obstacles in this case, has the duty to remove the above obstacles to the Plaintiff, the owner of the land in this case, unless there are special circumstances.

(2) Claim for the delivery of the instant 2, 3 parts of land

(A) The party's assertion

The Plaintiff asserts that Defendant 2 owned each of the obstacles in this case and sought transfer of the land in this case 2 and c c c sc sc sc sc sc sc s s s s s s s s s s s s s s s s s s s s

(B) Determination

1) The premised legal doctrine

In light of social norms, since a building cannot exist regardless of its site, the land which became the site for the building is occupied by the owner of the building. In such cases, even if the owner of the building does not actually occupy the building or its site, it shall be deemed that he occupies the building site for the purpose of owning the building. However, barring special circumstances, such as where the owner of the building holds the de facto right to dispose of the building, and thus it can be deemed that the building site also occupies the building site, a person who is not the owner of the building cannot be deemed the owner of the building even if he actually occupies the building (see Supreme Court Decision 2009Da28462, Sept. 10, 209). The same applies not only to the site for the building itself, but also to the site around the ownership and use of the building.

2) The duty to transfer part of the instant land to another person

As seen earlier, Defendant 2, as the owner of each of the obstacles in this case, occupied each of the obstacles in this case’s land. In full view of the following: (a) evidence Nos. 5-1, 2, 3, and evidence Nos. 6-1 through 14 of the above obstacles in this case’s land; and (b) the result of Nonparty 8’s on-site inspection by this court; and (c) the entire purport of the pleading, the result of the appraiser Nonparty 8’s survey and appraisal, the land in this case’s land in this case’s land in this case’s land is separated from the outside; (b) land in this case’s land in this case’s land in this case’s land in this case’s land is scattered into a fence, and is also used as a parking space for automobiles. According to the above facts, Defendant 2 is obligated to deliver the land in this case’s land to the Plaintiff as well as the land in this case’s land where the obstacles are located.

3) Whether or not the duty to deliver the portion of the instant three-dimensional land has occurred

However, there is no evidence to acknowledge that Defendant 2 occupied and used the land part of the C/C of this case for the convenience of possession and use of the obstacles of this case. Thus, the Plaintiff’s assertion on the above part cannot be accepted.

(3) Claim for return of unjust enrichment

(A) According to the above facts and judgment, from August 31, 201, when the Plaintiff acquired ownership of the instant land, Defendant 2 obtained profits equivalent to the profits from the use of the instant land by occupying and using the instant part of the land from August 31, 2011 to the present date. Accordingly, Defendant 2 is obligated to return the same amount to the Plaintiff, who is the owner of the instant land, as unjust enrichment.

(B) Furthermore, as to the amount of unjust enrichment to be returned by Defendant 2, the amount of profit from the possession and use of the real estate in ordinary cases is the amount equivalent to the rent of the real estate. According to the appraiser Nonparty 5’s appraisal result, the monthly rent per square meter from August 31, 2011 to August 30, 2012 (i.e., KRW 1,99,400/3,692 square meters), the amount of monthly rent per square meter from August 31, 201 to August 30, 2012 to KRW 2,067 (i.e., KRW 7,630, KRW 130/30, KRW 692 square meters, and KRW 2,067 from August 30, 2013 to KRW 30, KRW 2981, KRW 20681, KRW 2081, KRW 30681,294,297.281).

(C) Therefore, Defendant 2 is obligated to pay to the Plaintiff money at the rate of KRW 44,787,60 as unjust enrichment, ① after the delivery date of the copy of the complaint of this case, which is the date of the Plaintiff’s request for performance, and Defendant 2’s claim from August 30, 2012 to August 20, 2013, which is deemed reasonable for Defendant 2 to dispute as to the existence or scope of the duty to perform; KRW 5% per annum under the Civil Act until August 20, 2013; KRW 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment; ② from August 31, 2012 to the completion date of the part of this case’s land.

B. Determination as to Defendant 2’s assertion

As to this, Defendant 2 asserted that Nonparty 9 previously owned the instant house and the instant block structure on the instant land and its ground, and that Nonparty 3 (C) and Nonparty 7 (C) donated the instant land and the instant block structure to Nonparty 3 (C). Of them, Nonparty 2, around 1989, purchased the instant block structure, and around 1989, changed the owner of the instant land and the instant block structure. Therefore, Defendant 2 asserted that the statutory superficies under the customary law was established for the instant block structure.

According to Non-Party 2's testimony, Eul evidence 10-2, Eul evidence 10-2, and Non-Party 2's testimony, although Non-Party 2 purchased the land of this case from Non-Party 3, Non-Party 7, and Non-Party 6, etc. on the ground of this case in 1981 and 1989, it cannot be concluded that the above facts alone are the same as the block structure of this case where a household building formed the above brick exists. Since there is no other evidence to support the above facts, the above assertion by Defendant 2 is without merit (In addition, even if the block structure of this case had already existed at the time of August 27, 1989, Non-Party 2 purchased the entire house of this case including the house of this case from Non-Party 3, Non-Party 7, and Non-Party 6, etc., which were the inheritor of Non-Party 9, and purchased the house of this case on the ground of this case, and it is not necessary to accept only the above land of this case 984.

4. Judgment on the claim against the main defendant 3 and the conjunctive defendant 4

A. Claim against the main defendant 3 corporation

(1) According to the above facts, Defendant 3 Co., Ltd. without legitimate title occupies each of the obstacles of this case 2) and interferes with the Plaintiff’s exercise of land ownership. Thus, Defendant 3 Co., Ltd. is obligated to leave the Plaintiff from each of the obstacles of this case.

(2) In addition, the Plaintiff sought against Defendant 3 Stock Company the removal from the instant house. However, as seen above, Defendant 1 acquired the right to claim for the transfer of ownership due to the completion of the prescription period for possession of the instant house site, and as long as Defendant 3 Stock Company occupies the instant house with the permission for possession and use from Defendant 1, the Plaintiff cannot claim against Defendant 3 Stock Company the removal from the instant house, and thus, the Plaintiff’s assertion on this part is rejected.

B. Claim against the conjunctive Defendant 4

In preparation for the case where Defendant 4 et al. possessed by Defendant 3 corporation and Defendant 4, the Plaintiff sought a preliminary withdrawal from the instant house and each obstacles. However, as seen above, the person possessing the instant house and each obstacles is not the preliminary Defendant 4 but the primary Defendant 3 corporation, the representative director of which is working, and thus, the Plaintiff’s claim against the preliminary Defendant 4 on a different premise is without merit.

5. Conclusion

Therefore, the plaintiff's claim against the defendant 2 and the main defendant 3 corporation shall be accepted within the scope of each above recognition, and each of the remaining claims and the plaintiff's claim against the defendant 1 and the conjunctive defendant 4 shall be dismissed in its entirety as it is without merit. It is so decided as per Disposition.

[Attachment Form 3]

Judge Sywing-up (Presiding Judge)

(1) On February 26, 2013, Defendant 2 asserted that there was a statutory superficies under the customary law for the entire obstacles of this case by purchasing each obstacles of this case from Nonparty 3 and Nonparty 7, and that there was a change in the owners of each obstacles of this case. However, from the preparatory document dated June 27, 2013, Defendant 2 asserted that there was a building of this case ③ at the time of June 27, 2013, there was a building of this case, and asserted only the statutory superficies under the customary law for the remaining obstacles except the block building of this case, and thus, the assertion to establish the statutory superficies under the customary law for the remaining obstacles of this case is deemed to have been withdrawn.

2) On June 28, 2012, Defendant 2 led to the confession that Defendant 2 possessed the instant house and obstacles on the first day for pleading, and on May 30, 2013, Defendant 3, not Defendant 2, a preparatory document, asserted that Defendant 2 possessed the instant house and obstacles, and thus revoked the confession. On this basis, the Plaintiff also asserted that Defendant 3 corporation occupied the instant house and obstacles on June 27, 2013 with the application for the alteration of the purport of claim and cause thereof, and subsequently, the Defendant 3 corporation, as Defendant 2, as Defendant and Defendant 2, as Defendant 2, were to seek the withdrawal from the instant house and obstacles. As such, the said confession is deemed to have been revoked.