[1] Whether the possession of the site is recognized even if the owner of the building does not actually occupy the building (affirmative)

[2] Whether the possessor of a building who is not the owner of the building can be deemed the possessor of the building site (negative in principle)

[3] Whether a co-owner’s joint possession of the site of a building can be recognized (affirmative), and the relationship of ownership due to the completion of prescriptive acquisition by possession of the site

[4] In a case where a 1/2 right holder of land exclusively occupies and uses the land without consultation with the remaining 1/2 right holder of the land, whether the remaining right holder of the right holder may claim the exclusion of the exclusive use as an act of preservation of the jointly owned property (affirmative)

[1] Since a building cannot exist regardless of its site under social norms, the land which became the site for the building shall be deemed to have been possessed by the owner of the building. In this case, even if the owner of the building does not actually occupy the building or its site, it shall be deemed to have occupied the building site for the purpose of owning the building.

[2] Unless there exist special circumstances such as where the transferee holds the de facto right to dispose of the building by taking over an unregistered building, and the transferee is not the title holder of the building but the owner of the building, barring any special circumstances such as it can be seen that the land of the building is also possessed, it cannot be viewed as the person who occupies the building site.

[3] Even if only a part of co-owners of a building occupies the building, the site of the building shall be deemed jointly possessed by all co-owners of the building for the purpose of owning the building, and if co-owners of the building acquire the ownership of the building site by prescription due to joint possession of the building site, the right to claim ownership transfer registration on the ground of completion of the acquisition by prescription shall belong to co-owners of the building in the same proportion as

[4] In a case where both co-owners share equally one-half shares, a 1/2 equity right holder shall not exclusively use the goods without consultation with the other 1/2 equity right holder. The remaining right holder shall be entitled to seek the exclusion of exclusive use as an act of preservation of the jointly owned property, i.e., removal of the above ground buildings and removal of the land.

[1] Article 192 of the Civil Act / [2] Article 192 of the Civil Act / [3] Articles 192, 245 (1), and 262 of the Civil Act / [4] Articles 245 (1) and 265 of the Civil Act

[1] Supreme Court Decision 96Da34559 delivered on December 20, 1996 (Gong1997Sang, 358), Supreme Court Decision 98Da2389 delivered on May 8, 1998 (Gong1998Sang, 1593) / [2] Supreme Court Decision 93Da2483 delivered on October 26, 1993 (Gong1993Ha, 3163), Supreme Court Decision 94Da27809 delivered on December 9, 1994 (Gong195Sang, 451) / [3] Supreme Court Decision 96Da3459 delivered on December 20, 196 (Gong197Sang, 197Sang, 300Da3459 delivered on December 29, 194 (Gong31948 delivered on December 19, 199) / [3] Supreme Court en banc Decision 203Da1932949894 delivered on December 19799, 19494997

For the Incorporated Foundation, the Prehynam School Association ○○○○ Foundation

Defendant

Seoul High Court Decision 2002Na19010 delivered on September 12, 2002

Of the judgment of the court below, the part against the plaintiff as to the removal of the building part and the claim for delivery of the land portion indicated in the annexed drawing No. 2 (3), (4), (5), and (1) is reversed, and this part of the case is remanded to the Seoul High Court. All remaining appeals by the plaintiff and the defendant are dismissed.

The plaintiff and defendant's grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

1. The judgment of the court below on the ground of the plaintiff's claim

(2) According to the reasoning of the judgment below, the court below determined that the part of the building site No. 261-23 square meters (hereinafter referred to as "the building site No. 2") of the building site No. 1 and No. 327 square meters (hereinafter referred to as "the building site No. 3 site") of the same building site No. 1 and the part of the building No. 2 of the building site No. 1 and the part of the building No. 2 of the building site No. 2 of this case (hereinafter referred to as "the building site No. 3 site No. 2") of this case are "the building site No. 1 and No. 2 of this case" and the part of the building No. 1 and No. 2 of the building site No. 2 of this case are "the building No. 1 and No. 2 of this case" and the part of the building site No. 1 and the part No. 2 of the building site No. 2 of this case are "the building site No. 1 and No. 2 of this case No.

2. As to the judgment of the court below on the defendant's source of possessory right and the grounds of appeal

A. As to the Plaintiff and Defendant’s ground of appeal on the first site of this case

(1) The judgment of the court below

According to the reasoning of the judgment below, the court below, based on the following facts: on January 28, 1971, Nonparty 1 newly constructed the Defendant’s housing on the third ground of this case, and completed the registration of ownership transfer as to the third ground of this case on December 11, 1972; thereafter, on the ground of sale from the above non-party 1 to March 9, 1978, the Defendant constructed the third ground of this case’s housing under its name; on the third ground of sale from the above non-party 1 to the above non-party 1 on August 1, 1985, 1/2 shares among the Defendant’s housing; on the ground of sale on August 20, 1981, the remaining 1/2 shares were constructed on the ground of the non-party 1’s new construction as part of the Defendant’s housing, and on the third ground of this case’s building site’s new construction, the ownership status of the third ground of this case’s housing was reduced, and the remaining 1/2000 square meters of this case’s building.

In addition, the court below held that the plaintiff's claim of this case seeking removal of the building or delivery of the site was unfair, since the defendant acquired the ownership of the part of the building No. 1 of this case from December 31, 1979 to occupy the part of the building No. 1 of this case and occupied it in peace and public performance for twenty (20) years from December 31, 199, and since the acquisition by prescription for the part of the building No. 1 of this case was completed as to the part of the building No. 1 of this case, the plaintiff's claim for removal of the building and delivery of the site was unlawful. The building no longer exists in social norms, and the owner of the building occupies the site of the building. Thus, on December 31, 1979, the defendant acquired 1/2 shares of the part of the building No. 1 of this case with the non-party 1 who is the owner of the remaining 1/2 shares, and it was evident that the ownership of the remaining part of the building No. 1 of this case had not been completed due to 128/1 of the building No. 1 of this case. 92 of this case. 2 of this case. 1 of this case.

Furthermore, as seen earlier, the lower court determined that the Plaintiff’s claim for removal of the portion 1/2 of the instant building site and delivery of the portion 1/2 of the instant building site constitutes abuse of rights, separate from seeking the return of unjust enrichment, on the ground that the Plaintiff is liable for the transfer of ownership based on the completion of prescriptive acquisition with respect to the portion 1/2 of the instant building site. In so doing, the lower court determined that the Defendant is liable for the return of the remainder 1/2 of the instant building site, on the ground that the benefit of the franchise fee from the Defendant’s possession of the instant building site was obtained by lawful title based on the retroactive effect of prescriptive acquisition, and thus, there is no need for reimbursement to the original owner. Accordingly, the lower court held that the Defendant is obligated to return only the remainder 1/2 portion of the instant building site to the Plaintiff.

(2) The judgment of this Court

(A) Since it is impossible for a building to leave its site under social norms, the land which became the site for the building shall be deemed to be possessed by the owner of the building. In this case, even if the owner of the building does not actually occupy the building or its site, it shall be deemed that he occupies the site for the ownership of the building (see, e.g., Supreme Court Decisions 84Nu763, Jul. 8, 1986; 93Da2483, Oct. 26, 1993; 95Da23200, Nov. 14, 1995; 95Da47282, Jun. 14, 1996; 96Da3459, Dec. 20, 196; 98Da2389, May 8, 198).

Meanwhile, even if a person who is not the title holder of a building actually occupies the building, barring any special circumstances such as where the transferee is deemed to possess the building site by acquiring unregistered buildings and de facto disposing of the building site, it shall not be deemed that the possessor occupies the building site (see Supreme Court Decisions 93Da2483, Oct. 26, 1993; 94Da27809, Dec. 9, 1994; 94Da27809, Oct. 26, 199). Even if only part of co-owners of the building occupy the building, the site of the building is jointly occupied by all co-owners for the purpose of owning the building. In case where co-owners of the building acquire the ownership of the building site by prescription due to the joint possession of the building site, the right to claim ownership transfer on the ground of the completion of the acquisition by prescription shall belong to co-owners of the building in the same proportion as co-ownership share of the building (see Supreme Court Decision 96Da35596, Dec. 20, 1996).

(B) On December 31, 1979, there is no evidence to acknowledge that the Defendant already purchased the entire Defendant’s housing unit at the time of completing the registration of ownership transfer as to the 1/2 portion of the Defendant’s housing unit on December 31, 1979, and had already been in possession of the real right to dispose of the entire Defendant’s housing unit. In light of the records, the lower court’s findings and determination that the Defendant acquired the ownership on December 31, 199 only with respect to the 1/2 portion of the instant housing unit on December 31, 1999, are justifiable in accordance with the above legal principles. In so doing, there is no error of law of misconception of facts due to violation of the rules of evidence and incomplete deliberation as alleged by the Plaintiff or the Defendant (or, in case where the Defendant regards the 1/2 portion of the instant housing unit as the starting date of acquisition on January 28, 197 on the premise that the Defendant’s possession was commenced at the expiration of the prescription period after the expiration of the prescription period.

In addition, one of the co-owners of a building is not the possessor of the building site who can claim the prescriptive acquisition for the site of the building, and the plaintiff's argument in the grounds of appeal that one of co-owners of the building occupies the whole building site by preservation on behalf of other co-owners of the building cannot be accepted as all of the defendant's argument in the grounds of appeal that is contrary to the above legal principles. Therefore, the judgment of the court

(C) However, as seen earlier, the part of the first site of this case can be co-owned land with the Plaintiff and the Defendant’s respective share ratio of 1/2, because the Defendant can acquire ownership for one-half of the first site of this case as to the completion of acquisition by prescription. However, in a case where both co-owners own one-half shares, each of them can not be exclusively used without consultation with the other 1/2 share right holders, and the remaining right holders of this case have the right to request the removal of exclusive use, i.e., the removal of the building on the ground and the removal of the land on the ground, and the removal of the remaining part of the building without the Plaintiff’s share ratio of 20Da1280, 1281, Jan. 15, 1981, the lower court cannot be deemed to have a right to request the removal of the remaining part of the building site of this case without any special reasons, such as the removal of the building and the removal of the land on the ground.

Therefore, the judgment of the court below which rejected the Plaintiff’s removal of the first and second building parts and the claim for the delivery of the first site parts of this case is erroneous in the misapprehension of the legal principles as seen above, which affected the conclusion of the judgment (Provided, That the judgment of the court below which accepted the Plaintiff’s claim for return of unjust enrichment only for the 1/2 portion out of the first site part of this case is justifiable). The Plaintiff’s ground of appeal

B. As to the Defendant’s ground of appeal on the second site of this case

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the above part of the second site of this case was occupied by the non-party 1 from January 28, 1971, or that the defendant occupied the building site of this case from December 31, 1979. (2) The above part of the second site of this case was extended with the defendant's approval for use from the non-party 2, the owner of this case's second site of this case around 1995. (3) Even though the plaintiff, who was using part of the second site of this case without permission as the defendant, purchased the second site of this case's land of this case without permission, and (4) the defendant's assertion that the above part of the second site of this case's second site of this case's second site of this case's second site of this case's second site of this case's second site of this case's second site of this case's purchase with the defendant's agreement to jointly purchase the second site of this case's case's second site of this case's second site of this case's.

Examining the judgment of the court below in comparison with the records, we affirm the above fact-finding and judgment of the court below, and there is no error in the misapprehension of legal principles as to mistake of facts and the principle of good faith due to the violation of

3. Ex officio determination on damages for delay

The portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the former Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 2003) was decided as unconstitutional by the Constitutional Court on April 24, 2003. Accordingly, the above provision of the amended Act and the main provision of Article 3 (1) of the former Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) provide that the statutory interest rate shall be 20% per annum for cases pending at the court at the time of the enforcement of the above amended Act, which are pending at the time of the enforcement of the above Act, shall be applied to delay damages at the rate of 25% per annum, which shall affect the conclusion of the judgment. Thus, the court below's order to pay delay damages at the rate of 200% per annum from May 31, 2003.

4. Conclusion

Therefore, among the judgment of the court below, the part against the plaintiff as to the removal of the part of the building Nos. 1 and 2 and the claim for delivery of the part of the building No. 1 of this case and the part against the defendant as to the damages for delay are reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the plaintiff and the defendant are all dismissed, and they are all dismissed.

Justices Cho Cho-Un (Presiding Justice)