2014Da36153 Demurrer

It is as shown in the attached list of plaintiffs.

E. E. E.S.C.

Grand Loan Co., Ltd.

(B) Trade name before change: Daedidi, DIM Holdings Inc.)

Seoul High Court Decision 2013Na33012 Decided April 17, 2014

September 4, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The lower court rejected the Plaintiffs’ claim for provisional disposition No. 7 of the Seoul Central District Court Decision No. 209khap 311 on March 6, 2009 that held that: (a) the Plaintiff’s 18 owners of NBC (hereinafter “Plaintiffs, etc.”) removed the former NBC on the 19-household site; and (b) the Defendant’s joint ownership registration No. 7 of the 19-year unit against K as the right to claim the registration of the establishment of neighboring mortgage against K on the 19-household unit; and (c) the Defendant’s claim for provisional disposition No. 7 of the 70-year unit on the 18-year unit on the 18-year unit on the 7th unit on the 7th unit on the 7th unit on the 19-year unit on the 7th unit on the 7th unit on the 7th unit on the 19-year unit on the 7th unit on the 7th unit on the 19-year unit on the 1st unit on the 7th unit on the 7th unit.

2. However, the lower court’s aforementioned determination is difficult to accept for the following reasons.

A. The ownership of a new building is, in principle, acquired from a person who constructed a building in his/her own effort and materials. However, in the construction contract of a new building, where the contractor and the contractor agree to vest in the contractor the ownership of the completed building, such as that the contractor will obtain a construction permit under the name of the contractor and the contractor even if the contractor completed the building with his/her own effort and materials, the ownership of the building shall be reverted to the contractor. In this case, if a new building as an aggregate building is jointly owned by several persons as the owner, and the contract for construction is concluded, the ownership of the building shall be reverted to the contractor. Unless any special circumstance exists, the joint owner shall be deemed as the ownership of the building in the form of co-ownership (see, e.g., Supreme Court Decision 2009Da6690, Jan. 28, 2010).

B. The record reveals the following facts.

1) The 18 Plaintiffs, etc. agreed to determine the owners of each section of exclusive ownership of new NND by drawing in order to remove the former NND and newly construct new NND. According to the agreement, a sectional owner who will acquire each of the above sections of exclusive ownership was determined with regard to 18 households, excluding 701 units, among the 19 households of new NND 19.

2) In the foregoing process, K was determined as a sectional owner of new NNC regarding No. 603, and thereafter, it was originally acquired as the above 603 was newly constructed. The Defendant also received a decision to prohibit the provisional disposal of real estate from disposing of new NNC 603, and completed the registration of the establishment of joint ownership, the registration of existence, and the registration of the establishment of joint ownership, and the above 603 was subsequently awarded a successful bid on the other by the execution of joint collateral security.

3) The “the balance of construction costs for each household” (record 325 pages) of ENFC Co., Ltd., a contractor for new NNF construction, includes the relevant household of NNF, which the plaintiffs et al. acquired at their own time, and the relevant sharing amount. As to subparagraph 701, the relevant owner’s public interest is the same (the relevant household that the plaintiffs acquired at their own time and the residence in which the plaintiffs were residing or resided).

4) Meanwhile, on September 28, 2009, the Defendant: (a) confirmed on September 28, 2009 that 701 had been registered as the sole owner of K; (b) prepared a confirmation document (Evidence A 3-1) stating that K has a security right only for K’s share. The above facts and the following circumstances can be inferred from it; (c) the Plaintiffs, etc. determined the original acquisitor of 18 generation among new NBC pursuant to the agreement, but agreed with 19 households, and the Plaintiffs, etc. were 18 members and 70 households, which had no choice but to submit an agreement on the ownership or disposal method of 701,000,000,000,0000,0000, 70 households, which had no choice but to reach an agreement; and (b) concluded that the above investigation agency did not have any specific circumstance to deem that the Plaintiffs, etc. did not have any ownership or disposal method under the premise that the Plaintiff, etc. did not have any ownership or disposal method under the premise that it did not have any other circumstances.

D. Nevertheless, the court below rejected the plaintiffs' assertion on the ground that there is insufficient evidence to acknowledge that the plaintiffs et al. agreed to share 701 only with the evidence of the judgment below. In so doing, the court below points out that if the plaintiffs et al. did not designate the original acquisitor with respect to 701 while determining the original acquisitor of the 18 generation of the new NBC, it would be necessary to examine the reasons, unlike other joint owners of building, whether K would have any special circumstance to obtain the original purchaser of 701, and whether K would have any special circumstance to prove that 701 was owned by K at the time of the application for the prohibition of the provisional disposition of real estate, and since 701 was jointly constructed at the cause of the plaintiffs' claim, the plaintiffs et al. were newly constructed at the time of the application for the prohibition of the provisional disposition of real estate, it should be viewed that there was a error of fact-finding without sufficient review as to whether the 701 unit was included in the plaintiffs' joint ownership (On the other hand, the defendant mentioned the judgment in the related civil case).

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

A person shall be appointed.

A person shall be appointed.