(영문) 서울고등법원 2004. 11. 5. 선고 2003나77389 판결

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the part cited in paragraph 2. below shall be revoked. 2. The plaintiff shall:

(a) As to each real estate listed in the list (attached Form 7):

(1) On February 24, 1997, the Defendant Co., Ltd.’s movable house carries out the procedure for registration cancellation of each ownership preservation registration completed by commission of the registration of provisional attachment No. 11092, which was completed by the Suwon District Court’s Registry

B. The Civil Bank of Korea, the Saembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaembaemba, Gaembaembaemba, Gaembaembaembaemba, Gaembaembaem, Gaembaem, Gaembaem, Gaembaem, Gaembaem, Gaem, Gaemba

(b) As to each real estate listed in the list:

(1) Defendant Kim money implements the procedure for cancellation of registration of cancellation of each ownership transfer registration as completed on October 6, 200 by the Suwon District Court, Suwon District Court, Port of Law No. 85066;

D. The Defendant Gyeonggi-nam Fisheries Cooperatives shall implement the procedure for cancellation registration of each of the registration of the establishment of a new mortgage completed on August 30, 200 by Suwon District Court, Suwon District Court, Magwon, Magwon, Law No. 75006 of August 30, 200 and Law No. 7507 of August 30, 200.

(1) The registration of transfer of ownership that was completed on May 26, 200 by the Suwon District Court of Suwon-si (U.S.) and completed on May 26, 200 as the receipt No. 43689

(2) The transfer of ownership, which was completed on August 31, 200 by the receipt No. 75145 of the same registry office with respect to the immovable property;

Article 75147 of the receipt of August 31, 200, respectively, of the same registry office with respect to real estate (3) the registration of each transfer of ownership, which was completed on May 26, 2000 by the same registry office, No. 43690 of the same registry office;

x) the ownership transfer registration completed on August 31, 200 by the same registry office No. 75146, in respect of the real property;

(v) the Defendant’s holder: (v) the transfer of ownership, completed on May 25, 200 by the same registry office No. 43691, with respect to immovable property;

⑹ 피고 백영재는 ⑥부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43692호로 마친 소유권이전등기의,

⑺ 피고 김일남은 ⑦부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43693호 및 ⑬부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43698호로 각 마친 각 소유권이전등기의,

⑻ 피고 김영남은 ⑧부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43694호 및 ⑪부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43696호로 각 마친 각 소유권이전등기의,

⑼ 피고 강경미는 ⑩부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43695호로 마친 소유권이전등기의,

⑽ 피고 조양례는 ⑫부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43697호로 마친 소유권이전등기의,

Each cancellation registration procedure shall be implemented.

D. As to each real estate listed in the list (attached Form 5), Defendant Young-si shall express its intention of acceptance to the Plaintiff as to the cancellation registration of each of the provisional attachment registration completed by the commission of the registration of the provisional attachment No. 11092, Feb. 24, 1997, which was completed by the Suwon District Court Registry of Suwon-si.

3. The total costs of the lawsuit shall be borne by the Defendants.

Purport of claim and appeal

1. Purport of claim

A. The primary purport of the claim

(1) As to each of the real estate listed in the list, the Defendant Co., Ltd.’s movable property house shall carry out the registration procedure for cancellation of each of the provisional seizure registration completed by the commission of the registration of provisional seizure No. 11092, Feb. 24, 1997.

With respect to each real estate listed in the Luxembourg [Attachment 2] List, the Plaintiff, a national bank, nameing, Ansan-ho, Kim Young-ho, nameing, Kim Young-ho, nameing, nameing, Kim Jong-ho, Kim Jong-ho, Kim Jong-ho, Park Jong-ho, Park Jong-ho, Park Jong-ho, Park Jong-hee, Park Jong-hee, Park Jong-hee, Park Jong-hee, the Defendant (hereinafter referred to as the “Defendant”) (hereinafter referred to as the “Defendant”), leapman, Park Young-hee, and Park Chang-chul, who is a party to the lawsuit in the Korea Housing and Commercial Bank of Korea, shall express his/her consent to the registration of cancellation as described in subparagraph (a) of the above A.

[Attachment 3] With respect to each real estate listed in the list, the plaintiff shall:

㈎ 피고 김돈기는 수원지방법원 용인등기소 2000. 10. 6. 접수 제85066호로 마친 각 소유권 이전등기의 말소등기절차를 이행하고,

㈏ 피고 경기남부수산업협동조합은 수원지방법원 용인등기소 2000. 8. 30. 접수 제75006호 및 같은 등기소 2000. 8. 30. 접수 제75007호로 마친 각 근저당권설정등기의 각 말소등기절차를 이행하라.

x. the Plaintiff, listed in [Attachment 4] List, among each real property:

㈎ 피고 김해숙은 ①부동산에 관하여 수원지방법원 용인등기소 2000. 5. 26. 접수 제43689호로 마친 소유권이전등기의,

㈏ 피고 현재순은 ②부동산에 관하여 같은 등기소 2000. 8. 31. 접수 제75145호로 마친 소유권이전등기의,

㈐ 피고 김창남은 ③부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43690호 및 ⑨부동산에 관하여 같은 등기소 2000. 8. 31. 접수 제75147호로 각 마친 각 소유권이전등기의,

㈑ 피고 박노권은 ④부동산에 관하여 같은 등기소 2000. 8. 31. 접수 제75146호로 마친 소유권이전등기의,

㈒ 피고 권영자는 ⑤부동산에 관하여 같은 등기소 2000. 5. 25. 접수 제43691호로 마친 소유권이전등기의,

㈓ 피고 백영재는 ⑥부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43692호로 마친 소유권이전등기의,

㈔ 피고 김일남은 ⑦부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43693호 및 ⑬부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43698호로 각 마친 각 소유권이전등기의,

㈕ 피고 김영남은 ⑧부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43694호 및 ⑪부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43696호로 각 마친 각 소유권이전등기의,

㈖ 피고 강경미는 ⑩부동산에 관하여 같은 등기소 2000. 5. 26. 접수 제43695호로 마친 소유권이전등기의,

(12) on May 26, 200, the registration of transfer of ownership, which was completed by § 43697 of receipt on May 26, 200;

Each cancellation registration procedure shall be implemented.

(v) As to each real estate listed in the list (attached Form 5), the defendant Young-si shall express his/her intention of acceptance for the cancellation registration of each of the registrations of provisional attachment No. 11092, which was completed by the commission of the registration of provisional attachment No. 11092, February 24, 1997, by the defendant's movable house company

B. Preliminary claim(the plaintiff added the conjunctive claim at the trial)

(1) On August 28, 1998, the Defendant’s movable house Co., Ltd. shall implement the registration procedure for transfer of ownership on each real estate listed in the list (attached Form 3) to the Plaintiff.

[Attachment 3] With respect to each real property listed in the list, the Plaintiff:

㈎ 피고 김돈기는 수원지방법원 용인등기소 2000. 10. 6. 접수 제85066호로 마친 각 소유권 이전등기의 말소등기절차를 이행하고,

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff shall be revoked. It shall seek a judgment such as the primary purport of the claim.

Reasons

1. Basic facts

A. New construction process of the building of this case

(1) The Defendant Co., Ltd.’s movable housing (hereinafter “Defendant’s movable housing”) obtained a building permit and approval of the plan for the construction of the housing on the ground of 101-9 square meters and 1,69 square meters and 102-15 square meters and 1,838 square meters (hereinafter “instant land”), and around June 26, 191 in order to construct one apartment building on the 18th floor above the ground below the ground (hereinafter “instant building”) and completed construction with the approval of the plan for the construction of the 6th floor, around February 18, 192.

(2) On September 15, 1992, the White Housing Construction Co., Ltd. (hereinafter “White Housing Construction”) purchased the entire building of the instant land and the instant building under construction from the bond group of the Defendant’s movable property housing and the Defendant’s movable property housing for KRW 1.550 million, and agreed to transfer ownership to the Defendant’s movable property housing, etc. on a part of the apartment amounting to the purchase price after the completion of the said building, instead of paying the purchase price.

(3) Afterward housing construction completed the registration of ownership transfer with respect to the instant land on October 24, 1992, the apartment construction was implemented, but the construction was delayed due to the default on November 21, 1992, and the construction was discontinued on March 30, 1993, and the construction was resumed after the end of June 193.

(4) On May 3, 1993 and June 17, 1993, the Defendant’s movable house notified the housing construction to “to complete the construction of an apartment and deliver it by June 30, 1993,” but the Defendant’s movable house was not completed by the agreed deadline, and the Defendant’s movable house was notified of the cancellation of the sales contract under the above sub-paragraph (2) for the housing construction on April 11, 1994.

(5) Even after being notified of the cancellation of a sales contract from the Defendant’s movable house, the construction was resumed until October 1994. At the time of suspension, the construction of the instant building (the entire structure is 18th floor in case of the left-hand side and 7th floor in case of the right-hand side), the left-hand side (18th floor in case of the 18th floor) was partly up to the 18th floor, the 17th floor in case of the 17th floor and the 16th floor in case of the 16th floor in case of the 17th floor, but the 17th floor in case of the 18th roof, the 17th floor and the 18th floor in case of the 18th roof, the 7th floor in case of the 7th floor in case of the 7th floor in case of the 7th floor and the 7th floor in case of the 7th floor in case of the building as a whole.

B. The transfer of ownership of the instant land

(1) On the other hand, the Korea Housing and Commercial Bank Co., Ltd. (hereinafter “Housing Bank”) prior to the merger, which was the mortgagee of the instant land, was voluntarily decided to commence the auction of the instant land as of July 23, 1996, Suwon District Court No. 96Ma48649, Jun. 23, 1996.

(2) The land of this case was awarded a successful bid for the amount of KRW 560 million on March 11, 1997 at the above auction procedure, and the ownership transfer registration for the land of this case was completed on May 31, 1997.

(3) On April 23, 1997, 197, Yijin Co., Ltd. (hereinafter referred to as “Seojin, etc.”) established a “Yijin Construction Co., Ltd., Ltd., a representative director, by receiving a successful bid for the instant land and engaging in the construction of the instant building.”

C. Registration of preservation of ownership of the building of this case and subsequent provisional attachment, provisional disposition, and seizure registration are completed.

(1) In order to preserve the remainder of loans against the Defendant’s movable house which was not repaid in the above auction procedure against the instant land, the Housing Bank stated on February 19, 1997 that the construction of the instant building (the progress rate at the time was stated to the extent of 38% and 40% on the part of the Defendant’s movable house) was not completed as above and stated to the extent of 38% and 40% on February 24, 1997, and filed an application for provisional seizure against each of the real estate listed in the [Attachment 2] list (which is the building of this case completed at the same time; hereinafter, the same shall not apply), and on February 21, 1997, the provisional seizure order was issued on February 24, 1997 by the court’s entrustment pursuant to the above provisional seizure order, and on February 24, 1997, the Defendant’s movable property registration (hereinafter “instant real property registration”) was received under the name of the Housing Bank No. 192497.

(2) Following the building of this case, registration of provisional attachment No. 13767, March 8, 1997; registration of provisional attachment No. 13767, which was received on June 28, 1997; registration of seizure No. 4013, which was received on June 28, 1997 under the name of the defendant Young-si; registration of attachment No. 40113; registration of defendant Go-si; registration of provisional attachment No. 40234, Oct. 23, 1998; registration of provisional attachment No. 81235, Dec. 5, 1998; registration of provisional attachment No. 1984, Dec. 14, 1998; and registration of provisional attachment No. 15584, Oct. 15, 1998; and registration of provisional attachment under the name of defendant Young-si; and registration of No. 55354, Dec. 16, 1998.

D. Transfer agreement between the plaintiff and the defendant on the instant building

(1) Meanwhile, on July 28, 1997, the final bid price for the instant land as above B was awarded, agreed to operate the remaining construction works of the instant building on the instant land. From July 28, 1998 to September 2, 1997, the party agreed to receive KRW 320 million from the interference of construction five times during the period from July 28, 1998 to September 2, 1997, and the “Yan Construction Corporation,” a joint representative director, was established.

(2) Thereafter, on December 10, 1997, the 300 million won of the shares of the Defendant movable property and the building of this case shall be purchased from the Defendant Kim Savings machine (at that time, the representative director of the Defendant movable property was Red, and thereafter Red fever and the representative director of the Defendant Kim money was changed) entrusted by the Defendant’s movable property house. The 50 million won of the shares of the Defendant movable property shall be purchased after payment on the contract date, and the 50 million won of the shares shall be paid until January 13, 1998. (2) The remaining 150 million won of the shares of this case shall be set up in the joint law office, and the 200 million won of the personal bill shall be notarized, and the company name shall be paid in the back of the bill, and the 200 million won of the personal bill shall be paid in addition to the payment rate of the 300 million won of the shares of this case shall be paid in addition to the 300 million won of the shares of this case.

(3) However, as was not only paid only part of the down payment to the Defendant’s movable house, but also the intermediate payment of KRW 50 million was not paid until January 13, 1998, which was the expiration date of the contract, the Defendant Kim Shin-chul entrusted with the authority from the Defendant’s movable house, notified on January 21, 1998 that “the cancellation of the contract shall be made because he did not implement the above agreement,” and he notified that “The fixed amount would be paid in full as of March 1, 1998,” but the fixed amount would not be paid thereafter, and that “The cancellation of the transfer agreement as of December 10, 1997, on the ground of the non-performance of the agreement” was finally notified to Tae Tae-jin on April 20, 198.

(4) Afterwards, the building of this case could not be transferred because it was impossible to raise funds. Likewise, the Defendant’s movable property house, which was entirely unable to perform construction after the discontinuance of the construction of the housing in 00, was also resolved without any solution, Taejin, etc., and Defendant’s movable property house will transfer the land and buildings of this case to the Plaintiff. On August 28, 1998, the Defendant’s Red fever that was the representative director at the time of the Defendant’s movable property, Kim Jong, Kim Jong-young, the Plaintiff’s 400,000,000,000 won, 30,000,000,000 won, 60,000,000,000 won, and 80,000,000,000 won, 20,000,000,000 won, and 80,000,000,00 won, were transferred to the Plaintiff.

(5) According to the above transfer agreement of August 28, 1998, the representative director of the defendant movable house and the defendant Kim money at the time of the agreement, were issued to the plaintiff on the date of the agreement, and the consent form and certificate of corporate seal impression of the defendant movable house necessary for the modification of the business plan of this case were issued to the plaintiff. The plaintiff was aware of the fact that the registration of ownership preservation was made in the name of the defendant movable house under the above C. (1), but the above court dismissed the request of the housing bank on February 4, 1998, because the housing bank was filed against the defendant movable house and the registration of ownership preservation was not in conformity with the purport of the above decision that the registration of ownership preservation was not delivered to the plaintiff's house under the name of the defendant movable house under the above C. (1), and thus, the above court did not appear to have any effect on the transfer of the above movable house under the ownership registration agreement of this case as it did not affect the plaintiff bank.

(6) In addition, according to the transfer agreement dated August 28, 1998, the Plaintiff issued three promissory notes for the repayment of claims against the exhaustion of the Park Labor-Management Rights and notarized them. In addition, upon completion of the construction of the construction of the building of this case between Park Labor-Management and the Plaintiff, the Plaintiff prepared a sales contract for the apartment units 104, 105, and 107, which will be sold in lots, and paid KRW 150 million out of the claim 400,000,000,000 won to the Plaintiff as promissory notes, and the Plaintiff paid KRW 250,000,000,000,000 won to be paid from the Plaintiff. The provisional attachment was made against the land of this case based on the claim.

(7) On October 7, 1998, the Plaintiff obtained approval for the modification of the business plan stating that “the business entity shall be the Plaintiff, the designer, the architect, the architect's architect office, the contractor shall be replaced by a school comprehensive construction, and the apartment shall be replaced by a rental apartment from a general apartment,” pursuant to Article 33 of the Housing Construction Promotion Act and Article 20(2) of the Enforcement Rule of the same Act.”

E. The registration of ownership transfer of the building of this case by Defendant Kim Ba, etc.

(1) On the other hand, creditors of the Defendant’s movable property unit constituted a claim group, and on September 23, 1998, Defendant Kim money, the representative of the claim group, was the representative director of the Defendant’s movable property unit.

(2) Notwithstanding that the project undertaker of the housing construction project regarding the building of this case is changed to the Plaintiff as above, and the Plaintiff was delivered the building of this case to the Plaintiff and the Plaintiff was performing the remaining construction, on October 3, 2000, Defendant Kim money held a board of directors of the Defendant’s movable property house. After the decision was made by the Plaintiff to purchase the total purchase amount of KRW 94 million for 81 households among the 94 households of this case, the above 81 households of this case (attached Form 3) was completed on October 6, 200 with respect to the real estate listed in the list of the above 81 households (attached Form 3), and the remaining 13 households (attached Form 4), each of the Defendants made a sales contract under the name of each of the above Defendants, such as the name of Defendant Kimhae-hae, the present order, Kim Chang-nam, Kim Chang-nam, Park Jong-nam, the right to use the real estate listed in the list, and completed the registration of ownership transfer in the name of the Defendants.

F. The plaintiff's completion of construction of the building of this case

Meanwhile, the Plaintiff resumed from October 1998 the construction of the instant building, which had been left alone for several years after the suspension of construction work around October 1994, and performed the overall repair and reinforcement construction according to the result of safety structural diagnosis conducted around August 1998. The Plaintiff completed the internal construction of the entire building including the 18th roof construction and the 17th floor, and completed the interior construction of each section of the building, and completed the remainder of the construction of the building in question, and obtained a provisional use approval on July 8, 2003.

G. Change of the status of the parties

(1) On July 6, 2000, the police officer of each of the instant partitioned buildings died, and the Defendant Kim Mung, the wife of which was the inheritor (the name of the name of the name of the deceased was changed to the name of the deceased, but the name of the deceased was changed to the name of the deceased on March 19, 2002), the Defendant, who is the child, was the child, and the police officer of the deceased.

(2) On November 1, 2001, after the filing of the instant lawsuit, the Housing Bank was merged with the National Bank on November 1, 2001, and a new National Bank was established, and the rights and obligations of the Housing Bank were succeeded to the National Bank, a corporation taking over the lawsuit.

[Reasons for Recognition] A-1, 2, A-1, and 94, A-3, 4, 5, A-6, 7-1, 2, 8, A-1, 4-5, and 8, A-2, A-2, A-7-12, 15, 9-2, A-30-1, 2, 64-1, and 7, A- 68, A- 70, A- 73-1, 2, 3, 74, 75, A- 76-2, 5, 6, 78-1, and 2-2, and the purport of the entire pleadings

2. Determination as to the assertion on the qualification of some Defendants as a party

A. The assertion

The plaintiff asserted that the part of the claim in this case against the plaintiff's right to revoke the registration of the provisional seizure of the real estate against the defendant Jeong Jong-ho, Ansan-ho, Kim Young-ho, Park Young-ho, Park Jong-ho, Kim Jong-ho, Park Jong-ho, Park Jong-ho, Park Jong-hee, Park Jong-hee, Park Jong-hee, Park Jong-hee, and Cho Jong-chul (hereinafter "the defendant's right to the provisional seizure of the building of this case") for which the defendant's right to the provisional seizure of this case claimed that the above defendant's right to the provisional seizure of this case was declared and confirmed, and thus the above part of the claim is unlawful, since the provisional seizure of the real estate against the defendant Jong-ho as the right to the provisional seizure of this case was revoked, the above part of claim is unlawful.

B. Determination

(1) As to the fact that the judgment of revoking provisional seizure against real estate by the provisional seizure authority against the Defendant, etc. was pronounced and finalized, it is not sufficient to acknowledge the judgment by only the entries in Eul 9-1 and 3, and there is no other evidence to acknowledge it. Thus, the above assertion is without merit.

(2) In addition, even if the above judgment was made, the effect of the registration of provisional seizure which was already made by the judgment of cancellation of provisional seizure is not lost, the debtor is required to submit the original copy of the judgment to request cancellation of provisional seizure registration. Even in accordance with the above argument, the judgment of cancellation of provisional seizure became final and conclusive, and the registration of provisional seizure is not yet cancelled. Meanwhile, the issue of whether a "third party with an interest in the registration" is a "third party with an interest in the registration" which requires the declaration of consent to the registration of cancellation is determined by the registration of cancellation as the form of the registration. Thus, even if the right cannot be asserted against the third party in the substance, it is not likely that actual and specific damage is caused, and it is deemed that the third party with an interest in the registration remains as the owner of provisional seizure (see Supreme Court Decision 97Da33997, Feb. 5, 199). Therefore, in this case, the part of the claim for consent against the defendant's name, etc. which has yet been registered as the owner of provisional registration, is legitimate. Therefore, the above argument is without merit.

3. Grounds for the claim;

(a) The primary cause of the claim;

The plaintiff, around the other hand, purchased the building in this case which is still complete from the defendant's movable house and changed the name of the project undertaker to the plaintiff, and completed the building in this case by inserting about 3.9 billion won or more construction expenses and completing construction. The plaintiff asserts that the registration of preservation of ownership in the name of the defendant's movable house in this case, which was completed in each of the partitioned buildings in this case, is an invalid registration that is illegal as it was made for a building under construction which cannot be registered as an independent building and is merely an object of land, and is not an invalid registration. Therefore, the registration of preservation of ownership in this case and each transfer of ownership in the name of the remaining defendants and the establishment registration of neighboring mortgage shall be cancelled as an invalid registration, and the provisional disposition, provisional seizure registration authority and the seizure registration authority with respect to each of the partitioned buildings in this case shall express their intention of acceptance as an interested party on the registry.

(b) Preliminary cause of claim.

The plaintiff asserts that "The defendant's movable house sold the building of this case which was constructed at the time of August 28, 1998 to the plaintiff, but did not complete the registration of ownership transfer to the plaintiff, and that since the plaintiff concluded a false sales contract with the defendant Kim Bag with respect to the real estate listed in the list (attached Form 3) and completed the registration of ownership transfer, each of the above transfer registrations is null and void by Article 103 of the Civil Act with the registration based on the act of breach of trust conducted with the intent of not performing the obligation to transfer ownership to the plaintiff in collusion with the defendant Kim Kim Kim Ba, who was the representative director at the time of the defendant Kim Kim Ba, or with the registration based on the contract with the false conspiracy, or is null and void by Article 108 (1) of the Civil Act with respect to the real estate listed in the list of the defendant movable house."

4. Judgment on the main claim

A. The original acquisitor of the instant building

(1) Therefore, we first examine whether “the Plaintiff is the original acquisitor of the instant building.”

(2) (A) A person who newly constructed a building at his own effort and expense, regardless of whether the building permit was made in the name of another person, shall acquire the ownership of the building. On the other hand, if the building was delivered to a completed building, and completed the remainder of the construction work, due to the building owner’s circumstances, if the building had a form and structure that can be viewed as an independent building under social norms at the time the construction work was interrupted, the owner of the building originally acquired the ownership of the building (see Supreme Court Decision 2000Da16350, Apr. 26, 2002). In this case, the term “independent building under social norms” is deemed to meet the requirements of a building as an independent real estate if the building permit was made at a minimum pole, roof, and main wall (see Supreme Court Decision 2002Da21592, May 30, 203; Supreme Court Decision 200Da51608, Jan. 16, 2001, etc.).

(B) However, unlike the general independent building, in the case of an aggregate building consisting of a sectional ownership, each part of an aggregate building becomes the object of sectional ownership only when each part of an aggregate building can be used as an independent building to become the object of sectional ownership (Article 1 of the Act on the Ownership and Management of Aggregate Buildings). Thus, one of the whole buildings satisfies the independence as a building (Article 215(1) of the Civil Act). In addition, as in the case of a new construction of 20 or more households, as in the case of this case, the project plan shall be prepared and approved by the Minister of Construction and Transportation, and the same applies to the alteration of the project plan [Article 33 of the Housing Construction Promotion Act ("Housing Construction Promotion Act" has been amended and repealed as a "Housing Act" No. 6916 of May 29, 2003). Accordingly, the concept of "independent building" in an aggregate building shall be deemed as an independent building to the extent that the whole building and the part of an aggregate building can be seen as an independent building as an independent building, independent building, independent building, and independent building as a project owner.

[Along with the above interpretation, if the original acquisitor is different from each other according to each part of the construction work, in the case of an aggregate building (multi-unit building), the construction business operator discontinues the construction work, and if the construction work continues to be changed to another construction business operator or another construction business operator, the original acquisitor at the time shall be identified for each part of the divided ownership (each household), by considering whether it can be regarded as an independent building, and this is impossible (if the construction business operator is assumed extremelyly, it is impossible to move to each original acquisitor at each time after ascertaining the current status of construction at the time of the discontinuance of the construction work, and if each of the original acquisitor is found to be different from each other, it is impossible to do so). In other, in this case, it is impossible to register the ownership of each part of the divided ownership on the ground floor from 1 to 60,000 to 60,000 won on the ground surface (the remaining part of the house construction work on each floor).

(3) We examine the original acquisitor of the instant building in full view of the above general building law and the special legal principles of the condominium building.

(A) First, according to the degree of the progress of the construction at the time the building in this case was delivered to the Plaintiff, it is recognized that the Defendant movable house was completed the construction of the building in this case from the 1st to the 6th floor, the construction of the 6th floor to the 18th floor, the construction of the 17th floor, the construction of the 16th floor bed, the 7th floor bed, the construction of the 7th floor bed, the roof construction, and the entire construction of the building in this case, but it is still recognized that the construction of the building in this case was completed at the time when the Plaintiff delivered the building in this case on October 1998. The left portion of the building in this case was not completed with the 18th floor and rooftop construction. The construction of the 0th floor was suspended on October 1994, and the construction of the 8th floor was not completed at the time of completion inspection on the building in this case’s site and on the 3th floor construction of the 8th floor.

(B) Next, according to the transfer agreement dated August 28, 1998, the Plaintiff transferred the instant building from the Defendant movable housing to its owner on delivery, and changed the Plaintiff’s name on October 7, 1998. From around October 1994, the construction of the instant building neglected construction for several years after the suspension of construction. From August 1998 to around 30 million won, the Plaintiff performed safety diagnosis structure by taking out the cost of the building’s roof slabs, rupture of the building’s opening, rupture of the wall, rupture of the building, rupture of the building, rupture of the building from around 7, 1998, rupture of the building, rupture of the building, rupture of the building, rupture of the building, rupture of the building, rupture of the building, rupture and rupture of the building, rupture and rupture of the building to 18.7.

(C) If so, before October 7, 1998, the Plaintiff changed the Plaintiff’s own name to a project proprietor, transferred the instant building from the Defendant’s movable house, and performed the remaining construction work by taking his own expenses and effort, it cannot be deemed that the instant building satisfies the requirements of the building as independent real estate under social norms in terms of the overall one building. In addition, from the perspective of each partitioned building, it is difficult to deem that the building of this case has an independent form and structure in structure and use, which can be the object of divided ownership, and even from the perspective of each divided building, it is difficult to deem that the Defendant’s movable house and White Housing were equipped with each construction cost for each divided building of the 17th and lower floors of this case. Therefore, even if the Defendant’s movable house and White Housing were to have carried out construction work, that alone does not necessarily mean the original acquisition of the ownership of the instant building, which is an aggregate building, and the Plaintiff is considered to have completed each of the instant building as a divided ownership and the entire building to the extent that it can be seen as an independent real estate.

[The above determination is different from that of the Supreme Court Decision (Supreme Court Decision 2002Da21592, 21608 delivered on May 30, 2003, Supreme Court Decision 2000Da51872 delivered on January 16, 2001, etc.) that presented the standard as to whether the original acquisition between many construction business operators with respect to aggregate buildings is the basic date of the original acquisition, and it can be seen as a separate independent real estate which is not a combination of land, which is not a combination of real estate).

B. Effect of registration of preservation of ownership of this case

(1) As seen in the above A, the original acquisitor of the instant building is not only the Plaintiff, but also the entire building and each sectioned part at the time of the registration of ownership preservation is not completed, and the registration of ownership preservation, which was made in the name of the Defendant’s movable house rather than the original acquisitor of the entire building and each sectioned part, shall be deemed to be invalid registration lacking the cause.

(2) In other words, upon examining the progress of the registration of preservation of ownership in this case, for the purpose of the registration of provisional seizure to preserve the claim for loans against the Defendant’s movable property house, the registration of preservation of ownership in the name of the Defendant’s movable property house was completed upon the request of the court that rendered the decision of provisional seizure on the basis of the false assertion that the instant building was completed at the time of February 19, 1997, where the Housing Bank had made a provisional seizure registration for the purpose of preserving the claim for loans against the Defendant’s movable property house. The registration of preservation of ownership in this case was completed upon the request of the court that made the decision of provisional seizure. In addition, even if the entire building was not completed at the time of completion of the registration, and only when several parts can be used independently as the independent building, it can be registered as the indication of the building, which is the object of sectional ownership (Article 55 subparag. 13 of the Registration of Real Estate Act). Accordingly, since the registration of preservation of ownership in this case

C. Intermediates

Therefore, inasmuch as the registration of preservation of ownership in the name of the Defendant’s movable house, which was made in relation to the building of this case, is deemed null and void, each registration of preservation of ownership and registration of ownership transfer and establishment of a neighboring mortgage in the name of the Defendants stated in the name of the Defendants, “(A)” shall be revoked in order by invalidation. The Defendants indicated in the provisional attachment authority, the provisional injunction authority, and the seizure authority, shall express their intent of each acceptance regarding the registration of cancellation as above. Thus, the Plaintiff’s primary claim seeking such registration is with merit.

5. Conclusion

If so, the plaintiff's primary claim is justified (which did not separately determine the conjunctive claim), and the judgment of the court of first instance is unfair because it has different conclusions (the judgment of the court of first instance has accepted only the primary claim concerning the list of [Attachment 6] [Attachment 6] [the judgment of the court of first instance has accepted only the primary claim concerning the list of [Attachment 18] [Attachment 7] [Attachment 7] [the 1st floor and 17th floor]], and both the plaintiff's primary claim against the defendants are revoked.

[Attachment Selection and the List of Real Estate]

Judges Lee Jae-chul (Presiding Judge)

심급 사건

-수원지방법원 2003.9.25.선고 2001가합1075

서울고등법원 2004.11.5.선고 2003나77389

-(변경)대법원 2006.11.9.선고 2004다67691

원심판결

-수원지방법원 2003. 9. 25. 선고 2001가합1075 판결

본문참조판례

-1996. 7. 23. 수원지방법원 96타경48649호

-2000나45749 판결

-2001. 1. 16. 선고 2000다51872 판결