1. The instant lawsuit shall be dismissed.

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

1. The Plaintiff’s assertion is the owner of the Jung-gu Seoul Metropolitan Government C large 86.2m2m2, and the Defendant is the owner of the 1/2m2 share among D large 255m2m2.

There are fences between each of the above lands, and some of the facilities of the building owned by the plaintiff are installed on the wall above. The defendant filed a claim against the plaintiff for unjust enrichment amounting to KRW 52,752,00 on the ground that the plaintiff used the aforementioned wall without title for 10 years.

However, the above fence is not owned by the defendant, and the period of use and profit and unjust enrichment claimed by the defendant are mistakenly calculated.

Accordingly, the Plaintiff seeks confirmation that there is no obligation to return unjust enrichment due to the use of the above fence against the Defendant.

2. We examine, ex officio, whether the instant lawsuit is lawful or not, ex officio, as to the determination on the legitimacy of the instant lawsuit.

“The benefit of confirmation” in a lawsuit for confirmation is recognized when the party’s right or legal status is in danger and removal thereof is the most effective means to obtain a judgment (see Supreme Court Decision 91Da1264, Oct. 11, 1991). The benefit of a lawsuit ought to be determined at the time of conclusion of fact-finding pleadings.

(See Supreme Court Decision 91Nu9329 delivered on October 27, 1992). When a performance suit is pending, the defendant may contest that the defendant's obligation against the plaintiff does not exist by seeking a judgment of dismissal of claim in the lawsuit. Thus, there is no benefit to seek confirmation that there is no obligation against the plaintiff separately.

(See Supreme Court Decision 2001Da22246, Jul. 24, 2001). Meanwhile, Article 271 of the Civil Procedure Act provides that when the principal lawsuit has been withdrawn, the defendant may withdraw the counterclaim without the plaintiff’s consent. Accordingly, where the principal lawsuit has been withdrawn on the ground that the plaintiff raised the counterclaim, the defendant can obtain res judicata effect by unilaterally withdrawing the counterclaim.