Plaintiff 1 and one other (Attorney Kim Sang-gun, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorneys Han Sung-ho et al., Counsel for the defendant-appellant)

September 8, 2015

Changwon District Court Decision 2014Ra2504 Decided January 27, 2015

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

A. Defendant 1, Defendant 1, and Defendant 2 deliver to Plaintiff 1 the real estate listed in the separate sheet (hereinafter “instant real estate”), and Defendant 3 leaves the said real estate, and Defendant 1 leaves the said real estate, Defendant 1 and Defendant 2 shall pay the amount calculated by applying the rate of 20% per annum from the day following the delivery date of a copy of the instant complaint to the day of complete payment, respectively. Defendant 1 shall pay the amount calculated by applying the rate of 62,250 won per month and 220,750 won per month from June 11, 2014 to the day of complete delivery of the instant complaint.

B. Defendant 1 shall pay to Plaintiff 2 10,184,640 won with 5% interest per annum from December 16, 2013 to the date of the first instance judgment, and 20% interest per annum from the next day to the date of full payment.

2. Purport of appeal

The part of the judgment of the court of first instance against the Defendants shall be revoked, and the plaintiffs' claims corresponding to the revocation shall be dismissed.

1. Determination as to Plaintiff 1’s claim against the Defendants

(a) Facts of recognition;

1) History of the instant real estate

A) Of the buildings of the third floor above ground (hereinafter “instant building”) including the instant real estate, the first floor No. 101 (hereinafter referred to as “the instant building”) was registered on September 20, 200 with the area of the section for exclusive use as 266.6925 square meters in the collective building ledger on September 20, 200, and the section for exclusive use under subparagraph 101 was divided into the section for exclusive use under subparagraph 101 and the section for exclusive use under subparagraph 101 as 101 square meters on January 21, 2008.

B) On July 3, 2012, the portion of exclusive ownership No. 101, 186.2175 square meters and the portion of joint ownership 20.279 square meters were divided into the portion of exclusive ownership 160.978 square meters and the portion of joint ownership 17.5304 square meters and the portion of exclusive ownership 25.2397 square meters and the portion of joint ownership 2.7486 square meters.

C) On June 15, 2010, Plaintiff 1 completed the registration of ownership transfer in his/her future with respect to No. 101, 186.2175 square meters prior to the division of the instant real estate, including the instant real estate.

2) Possession relationship of the instant real estate

A) On September 1, 200, Defendant 1 and Defendant 2 jointly purchased No. 102 of the above building from Plaintiff 2 and completed the registration of ownership transfer as to Defendant 1’s share 3/4 with respect to Defendant 1’s share 1/4. around that time, Defendant 1 and Defendant 2 jointly leased the lease deposit amount of KRW 200,000,000, monthly rent of KRW 4,350,000, and KRW 4,350,000 with respect to the rent of KRW 101 and KRW 102.

B) Following the completion of a lease agreement on the size of 101 and 266.6925 square meters prior to the division on September 2006, Defendant 1 and Defendant 2 returned only the remainder other than the instant real estate among the above 101, and operated a pre-paid house by combining the instant real estate and subparagraph 102 with the instant real estate and subparagraph 102. On October 2013, 2013, Defendant 3 leased the sum of the instant real estate and subparagraph 102 to Defendant 3 and used it as of the date of closing the argument in this case.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, 10 evidence, Eul evidence 1 to 3, and the purport of the whole pleadings

B. Determination on the cause of the claim

According to the above facts, barring any special circumstance, Plaintiff 1, Defendant 1, and Defendant 2 are obligated to deliver the instant real estate and return unjust enrichment equivalent to the rent for direct, indirect, and use of the said real estate. ② Defendant 3 is obligated to withdraw from the said real estate.

C. Determination as to the defendants' assertion

1) Claims for the portion of co-ownership

A) The defendants' assertion

The original real estate of this case is owned by Defendant 1 and Defendant 2 with each entrance set up in subparagraphs 102 through 105 at the time of purchase of No. 102, and as such, the ownership transfer registration of this case is null and void. Therefore, Plaintiff 1 cannot seek against the Defendants the delivery, eviction and return of unjust enrichment based on the registration of invalidity.

B) Relevant legal principles

(1) Corridors, stairs that lead to several sections for exclusive use, and any section of a building that is provided for common use by all or some of sectional owners in the structure, shall not be the object of sectional ownership (Article 3(1) of the Act on the Ownership and Management of Aggregate Buildings).

Whether a part of Luxembourg aggregate building is a section of exclusive ownership or a section of common use shall be determined at the time when the entire building is completed and registered as a sectional ownership in the building ledger for the building in question. It shall not affect whether a part of the aggregate building is a section of exclusive ownership or a section of common use. Whether a part of the aggregate building is provided for the common use of all or a part of the sectional owners shall be determined by the objective purpose according to the structure of the building unless there is an agreement between the owners (see Supreme Court Decision 2010Da95949, Mar. 24, 201, etc.).

C) Determination

(1) According to the statements in the evidence Nos. 7, 12, and 14 (including paper numbers), the fact that the instant real estate among the multiple design drawings of the instant building is indicated as a passage can be acknowledged.

D. However, in light of the above legal principles, since September 1, 2000, when Defendant 1 and Defendant 2 started to use the instant real estate for lease of No. 101 and No. 266.6925 square meters, including the instant real estate, the instant real estate was occupied and used as a store with No. 102 for about 15 years until now. The instant real estate was part of the section for exclusive use of No. 101 from the time of its initial registration in the aggregate building register after the construction of the instant building, and was divided into No. 114 on July 3, 2012. In light of the following circumstances, it is difficult to view the instant real estate as a joint ownership portion, and there is no other evidence to acknowledge this otherwise, the Defendants’ aforementioned assertion is without merit.

2) The assertion of the terms of passage use agreement

The Defendants agreed to use Plaintiff 1 and the instant real estate as a passage for the purpose of subparagraph 102. Thus, they asserted that there was no delivery and removal of the instant real estate and no obligation to return unjust enrichment, but there is no evidence to acknowledge such an agreement, so the Defendants’ above assertion does not have any reason to further examine it (the fact that Defendant 1 and Defendant 2 occupied and used the instant real estate for about 15 years since September 1, 200, as well as its passage to a store with No. 102).

D. Scope of return of unjust enrichment

1) Facts of recognition

Furthermore, as to the scope of the obligation to return unjust enrichment to the Plaintiff 1 by Defendant 1 and Defendant 2, according to the results of the appraisal of rent to the KCAB, and the first instance court’s commission to the KCAB, where there is no security deposit, the sum of the monthly rent equivalent to the instant real estate from October 1, 2006 to June 10, 2014 is KRW 63,047,000, and the amount equivalent to the subsequent rent is KRW 883,00 per month.

2) Scope of obligation to return unjust enrichment

Therefore, according to plaintiff 1's claim, (1) as for defendant 1 who owns 102-3/4 shares above, 47,285,250 won (=63,047,00 won x 3/4) which is equivalent to the above shares x 18,935,250 won which is the remainder after deducting the deduction amount of 28,350,000 won from the unlawful gains of 10 x 3/4) which is the amount due, and the amount equivalent to monthly rent is calculated from June 11, 2014 to the day of complete payment x 20% per annum 60% per annum from June 11, 2014 to the day of complete payment x 160% per annum 60% per annum from June 11, 2014 to the day of complete delivery of the real estate of this case (=60% per annum 14,60% per annum x 160% per annum 14.7

3) Determination on Defendant 1’s assertion of additional deduction

A) Defendant 1’s assertion

With regard to the scope of the above obligation to return unjust enrichment, Defendant 1 asserts that since the sum of the money paid as the purchase price for the instant real estate reaches KRW 39,00,000,000, Defendant 1’s total, Defendant 1 should be deducted from the above unjust enrichment, Defendant 1’s total amount exceeding KRW 28,350,000,000, in excess of the amount that Plaintiff 1 should be deducted.

B) Determination

(1) Defendant 1 did not dispute the total amount of KRW 10,00,000 on December 28, 2006, KRW 3,650,00 on January 6, 2007, KRW 10,000 on July 25, 2008, KRW 200,000 on October 27, 2008, KRW 200,000 on December 5, 2008, KRW 200,000 on January 15, 200, KRW 200,000 on January 15, 200, KRW 200 on March 18, 2009, KRW 10,000 on May 11, 200, KRW 200 on May 200, KRW 305,06 between the parties concerned.

D. Meanwhile, around September 2006, Plaintiff 1 agreed to return KRW 20,000,000, excluding Defendant 1’s loans of KRW 180,000,000, and KRW 20,000,000, and KRW 100,000,000, the remainder of Defendant 1’s loans of KRW 100,000,000, and KRW 100,000,00, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 10,000, KRW 40,00, and the remainder of the pleadings.

Defendant 1 asserted that he remitted 4,00,000 won monthly from around 2004 to 2,000 won, and that the sum of the unpaid rents from around December 2005 to September 2006 was KRW 13,650,000 and KRW 10,000 on December 28, 2006, and paid 3,650,000 on January 6, 2007 to Plaintiff 1. However, as seen earlier, Defendant 1 did not have any evidence to acknowledge that the sum of the rents accrued from around 2,00,000 won was insufficient, or that there was no evidence to acknowledge that the sum of the rents was paid from around 2,00,000 won on four occasions after October 27, 2008; and Defendant 1 did not have any reason to acknowledge that there was a lack of evidence to acknowledge that the sum of the rents occurred from around 15,206,000 won.

x) After all, the amount to be deducted from determining the scope of the above unjust enrichment is the remainder of 28,350,000 won, excluding the unpaid rent of KRW 4,300,000 in total from KRW 32,650,000, and thus, Defendant 1’s above assertion that the excess of the above amount should be deducted is without merit.

2. Determination on Plaintiff 2’s claim against Defendant 1

(a) Occurrence of liability for damages;

1) Facts of recognition

A) On January 19, 2012, Defendant 1 filed a lawsuit for ownership transfer registration against Plaintiff 1 in the Changwon District Court No. 219 of Changwon District Court Decision No. 219, which was located in Changwon-si, Changwon-si, Changwon-si, Seoul, on the ground that Plaintiff 2 appeared as a witness in the court and testified to Defendant 1 disadvantageously, Defendant 1 completed the pleadings, and moved out of the court, and Plaintiff 2 took the bath of “the bruth of the brud new brudation,” and Plaintiff 2 took the floor of “the brudation of the brud death of the brud one,” and Plaintiff 2 suffered injury to Plaintiff 2 on the brudal fe, flaf, and stressed brue group, which requires the treatment of approximately 21 days.

B) Due to the above criminal facts, Defendant 1 was convicted of a fine of KRW 1,000,000 in the Changwon District Court 2012 Gowon-Ma471 on May 3, 2012. The above judgment became final and conclusive around that time.

C) On December 16, 2013, Defendant 1, at the coffee store, “△△△△” located in Kim Jong-si, Kim Jong-si, Kim Jong-si, divided the conversations between Plaintiff 2 and the above civil procedure, Defendant 1, on the ground that Plaintiff 2 would come out of the place, and divided Plaintiff 2’s title, and caused Plaintiff 2’s injury, such as salt, tension, etc., in need of medical treatment for about 10 days.

D) According to the above facts constituting the crime, Defendant 1 received a summary order of KRW 700,00 as the Changwon District Court Decision 2014 High Court Decision 201Da4477 on March 17, 2014, and thereafter, Defendant 1 withdrawn the request for formal trial and confirmed the above summary order as it is.

[Ground of recognition] Facts without dispute, Gap evidence 4-1, 2, Gap evidence 5-1 to 5, Gap evidence 7-1 to 7, the purport of the whole pleadings

2) Determination

According to the above facts of recognition, Defendant 1 suffered damage, such as assaulting Plaintiff 2 and injury, etc., Defendant 1 is obligated to compensate Plaintiff 2 for such tort.

B. Scope of liability for damages

(a) Medical expenses: 184,640 won in total;

[Reasons for Recognition] Gap evidence No. 4-3

2) Consolation money

The court shall recognize KRW 3,00,000, taking into consideration all the circumstances revealed in the pleadings of the instant case, such as the background of the instant case, the age and degree of causes attributable to the Plaintiff 2 and Defendant 1, and the part and degree of injury.

C. Sub-committee

Therefore, Defendant 1 is obligated to pay to Plaintiff 2 the total amount of damages of KRW 3,184,640 as well as damages for delay calculated at each rate of 20% per annum as stipulated in the Civil Act until January 27, 2015, which is the date of the first instance judgment, which is deemed reasonable for Defendant 1 to dispute over the existence of the obligation or the scope of the obligation, from December 16, 2013, which is the date of the final tort.

3. Conclusion

Therefore, the plaintiff 1's claim against the defendant 1 and 2 and the claim against the defendant 1 by the plaintiff 2 against the defendant 1 is justified within the scope of each above recognition, and the remaining claim is dismissed as it is without merit. The plaintiff 1's claim against the defendant 3 is justified as it is based on the conclusion of the judgment of the court of first instance. Thus, the appeal by the defendants is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Lee Dong-chul (Presiding Judge)