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(영문) 서울고등법원 2019.06.21 2018나2070821
건물철거 및 토지인도 등 청구의 소
Text

1. Of the appeal filed by the Defendant (Counterclaim Plaintiff) and the counterclaim claim, the exchangeable claim is changed in this court.

Reasons

1. The reasoning of this part of the judgment of the court of first instance is the same as that of paragraph (1).

(The main text of Article 420 of the Civil Procedure Act). 2. In the case of a claim for damages against the defendant by the plaintiffs who were subject to a judgment of the first instance court on the claim of the principal suit, this court was transferred to this court, but the plaintiffs were excluded from the subject of a judgment of this court as the plaintiffs withdraw an appeal from the date for preparatory pleading of this court held on March 13, 2019

The main point of the parties' assertion 1) The instant lease agreement and loan agreement were terminated on December 31, 2015 with the expiration of the period of validity.

Therefore, the defendant is obligated to remove the building of this case and deliver each of the land of this case to the plaintiffs.

The Plaintiffs did not conclude a pre-sale agreement with the Defendant on the instant building, and the instant building is located over the land owned by the Defendant as well as the J land leased by the Defendant from the Plaintiff A, and thus, the Defendant is not entitled to exercise the right to purchase the ground property regarding the portion of the instant factory building.

B) After the termination of the instant lease agreement and the loan agreement for use, the Defendant gains a considerable amount of the rent by occupying each of the instant land without any legal cause. Therefore, the Defendant has to return the amount calculated by adding the amount of money to the Plaintiff A at the rate of KRW 69,091,00, which is equivalent to the rent of J land in 2016, and KRW 6,128,000, which is the monthly rent of the J land from January 1, 2017 to the completion date of the transfer of J land. ② The amount of money to the Plaintiff B at the rate of KRW 2,835,000, which is equivalent to the rent of the K land in 2016, and KRW 251,000,000, which is the monthly rent of the land from January 1, 2017 to the completion date of the transfer of the K land, respectively, as unjust gains.

However, the Defendant concluded a contract to sell J land owned by the Defendant to H around June 2013 at the request of H and Plaintiff B, and concluded the instant building.

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