(영문) 춘천지방법원 2008.7.15.선고 2006가단15895 판결

2. Of the costs of lawsuit, the part relating to the principal lawsuit shall be borne by the Plaintiff, and the part pertaining to the participation by the intervenors shall be borne respectively.

Purport of claim

It is confirmed that the defendant's right to claim for payment of deposit money of KRW 32,672,850 deposited by Chuncheon District Court No. 1058 on November 15, 2007 is the plaintiff.

Intervention by Independent Parties

1. The primary purport of the claim is to confirm that the defendant's right to claim payment of deposit money of KRW 16,336,425 out of KRW 32,672,850 deposited by Chuncheon District Court Decision 1058 on November 15, 2007 to the intervenor of the independent party (hereinafter referred to as "the intervenor") has the right to claim payment of deposit money of KRW 8,168,212 to the intervenor of the independent party. 2. The primary purport of the claim is to confirm that the defendant's right to claim payment of deposit money of KRW 32,672,850 out of KRW 8,672,850 deposited by Chuncheon District Court Decision 1058 on November 15, 2007 is against the intervenor, and to the effect that the conjunctive claim of KRW 32,68,213 out of KRW 32,68,213 is against the intervenor's surrounding relation to the intervenor's claim.

Reasons

1. Basic facts

(a) New construction of unregistered housing and entry in the register;

(1) On March 20, 1970, A obtained a building permit as to the 401-22 ground wood menters and 39.943m (hereinafter “unregistered housing”) and completed the completion inspection on May 9, 1970. The above 101-22 Sincheon-si and 401-22 was changed on December 26, 1997.

(2) According to the building ledger, the building owner column for the above building is the building owner column A, the building owner column is the name D, and the intervenor E's resident registration number is stated in the above name, and the land that forms the basis for the building ledger is the house-to-land taxation ledger. According to the land-to-land ledger that forms the basis for the building ledger, the above resident registration number is deleted to two lines, where the taxpayer column is recorded in the tax manager column and the taxpayer's column is all recorded in D and the above E resident registration number is deleted.

(b) Family relationship and death of D;

D Without reporting marriage with the Intervenor E, F on July 7, 1965, and on October 22, 197, the Intervenor G was killed on October 13, 1988.

C. Conclusion of a sales contract between the Plaintiff and F

On August 6, 1989, the Plaintiff purchased an unregistered house from F in KRW 11,600,000.

(d) Progress of the confinement procedure;

(1) On July 29, 2005, the Defendant, as an enterprise in the school affairs and publication of the project implementation plan, as an enterprise for the construction of the Road Packaging Corporation in Chuncheon-si-si-dong-si-dong-si-si-si-si-si-si-si-si-si-si-si, and around July 4, 2006, in order to consult on the compensation for losses, identified the current status of the aforementioned unregistered houses to be incorporated into the Road Packing Corporation. The Defendant was composed of three houses, stores, warehouses, toilets, toilets, floors, fences, fences, fences, straws, water supply, and water supply (hereinafter referred to as “unregistered houses, etc.”).

(2) Around July 30, 2007, the Defendant applied for a ruling on acceptance of unregistered houses, etc. to the Gangwon-do Regional Land Expropriation Committee. On October 16, 2007, the said Expropriation Committee rendered a ruling on acceptance of compensation for the expropriation of unregistered houses, etc. at KRW 32,672,350.

(3) On November 15, 2007, the Defendant deposited KRW 32,672,850 as compensation for the expropriation of unregistered houses, etc. by designating the deposited person as the heir of the network under the Chuncheon District Court No. 1058 of 2007, under the premise that the owner of unregistered houses, etc. was D (hereinafter “the deposit of this case”).

[Grounds for Recognition] A-1.2, 2, 3, 4, 5-2, 6, 13-1, B-1, 1, 2, 5-1, 81.2, 9-1.2, 10, 11, 12, 13, 14, C-4-1.2, 4-1.2, 5-1.2, 5-1.2, 5-1.2, 5-1.2,

2. Determination on the legitimacy of the principal lawsuit

A. The plaintiff's assertion

The Plaintiff is the de facto owner who purchased the instant housing from F, one of the deceased’s successors, and who is qualified as the representative of the remaining successors, and thus, the Defendant denied this. Therefore, the Plaintiff sought confirmation that the right to claim for payment of compensation for the instant housing deposited by the Defendant was the Plaintiff.

B. Determination

We examine ex officio the legitimacy of the principal suit.

Even if the deceased's assertion that the deceased D's claim for ownership transfer registration against the deceased D's heir for unregistered housing has been accepted and the unregistered housing has been legitimately expropriated, it is only possible for the person liable for registration to seek the return of the compensation paid by the person liable for registration or to claim the transfer of the right to claim the compensation for expropriation, and the right to claim the compensation for expropriation itself belongs to the person liable for registration. The right to claim the compensation against the defendant who is not the person liable for registration cannot be deemed to belong to the person liable for registration. The plaintiff's claim for confirmation that the right to claim the compensation against the defendant is in the position of the person liable

3. Judgment on participation by an independent party

A. Determination as to the legitimacy of the main claim

We examine the legitimacy of the motion for intervention by the intervenors.

(1) The intervenor's assertion

The Intervenor E purchases unregistered houses jointly with D and actually owns the shares of 1/2 of the unregistered houses, and the Intervenor G succeeds to the right to property of the unregistered houses, and is in the de facto ownership of 1/4 shares. As such, the Intervenor E seeks confirmation that the Defendant’s right to claim a payment of the amount equivalent to 1/2 shares out of the compensation for expropriation of the instant houses deposited by the Intervenor E is against the Intervenor E, and that the 1/4 share of the compensation for expropriation is against the Intervenor.

(2) Determination:

(A) Determination as to the legitimacy of the Intervenor E’s application for intervention

In light of the above facts, in light of the fact that the land, which forms the basis of the building register, was deleted by 2 lines from the residents' number error deletion and 2 lines with respect to the above resident registration number in the house-related ledger, the participant E’s purchase of unregistered housing jointly with D is insufficient, and there is no other evidence to acknowledge it. In addition, even if the participant E’s claim for transfer registration of ownership to the former owner of unregistered housing, and the unregistered housing was duly admitted, even if the claim for transfer registration of ownership against the former owner was recognized, the person liable for registration can seek the return of the amount of compensation or transfer of the right for expropriation that the person liable for registration received by the person liable for registration cannot be deemed to belong to the person liable for registration. The intervenor’s claim for confirmation that the intervenor’s claim for compensation against the defendant without the person liable for registration should not be deemed to belong to the person liable for registration. Thus, the intervenor’s claim for confirmation against the defendant cannot be deemed to belong to dancing or dance, and the intervenor’s claim for compensation against the defendant is unlawful as the intervenor’s interest in this case.

(B) Determination as to the legitimacy of the Intervenor’s application for intervention by G

According to the above facts, the Defendant appears to have deposited the deposited person with the intent that the deposited person’s heir cannot be aware of all or part of the decedent’s death. On the other hand, since the unregistered house of this case was newly built by A and purchased by D through A, B, and C but the unregistered building was not registered, it appears that D had a right to claim ownership transfer registration against the former owner. In case of expropriation of land, the deposited person is the owner of the expropriated land and the deposited person acquired the right to claim ownership transfer registration by sale before the date of commencement of expropriation, but the deposited person cannot be the deposited person unless the ownership transfer registration was made by the date of commencement of expropriation. Although the Defendant stated the deposited person as the heir of D, and even if the Intervenor was the heir of D, the Plaintiff’s non-registered house of this case cannot be seen as being unlawful as the Plaintiff’s right to claim ownership transfer registration against the Intervenor, as long as he did not have the right to claim ownership transfer registration from the person liable for registration.

B. Determination on the legitimacy of the conjunctive claim

We examine the legitimacy of the Intervenor’s request for intervention by G.

(1) Intervenor G’s assertion

If the Intervenor E purchased an unregistered house with D on its own instead of purchasing the unregistered house with D, the Intervenor G succeeded to 1/2 shares, not 1/4 shares, from D. Thus, the Intervenor G is seeking confirmation that the Defendant’s claim for withdrawal of the amount equivalent to 1/4 shares out of the compensation for expropriation of the instant house deposited by the Defendant (if the amount equivalent to 1/4 shares as seen in the principal claim is included, referring to the amount equivalent to 1/2 shares), is against G.

(2) Determination:

As seen earlier, the Intervenor only has the right to claim the transfer registration of ownership against the former owner with respect to unregistered houses, and thus, insofar as the claim for the expropriation was not transferred by the former owner (person responsible for registration), the amount equivalent to the inheritance share out of the compensation cannot be deemed to belong to the Intervenor G. Therefore, the Intervenor’s lawsuit in this case is unlawful as there is no benefit of confirmation.

4. Conclusion

Thus, the plaintiff's lawsuit of this case and the intervenor's application for intervention are dismissed respectively.

Judges

Hong Manman

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