(영문) 대구지방법원포항지원 2015.11.27 2015가단2667

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(영문) 대구지방법원포항지원 2015.11.27 2015가단2667

건물철거 토지인도 지료 청구의 소

Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. The Plaintiff, the owner of the instant land, asserts that the Defendant resided in the instant building located on the instant land while living therein, and sought a removal of the instant building and delivery of the instant land, and a return of unjust enrichment equivalent to the rent calculated by the ratio of KRW 200,000 per month from October 16, 2014 to the completion date of delivery of the instant land, by asserting that the Plaintiff occupied the instant land.

2. In light of social norms, since a building cannot exist regardless of its site, the land which became the site for the building is occupied by the owner of the building, and in such cases, the owner of the building does not actually occupy the building or its site;

Even if the land is occupied for the ownership of the building, it shall be deemed that the land is occupied, and a person who is not the owner of the building occupies the real building unless there are special circumstances.

Even if the land cannot be seen as a person who occupies the land (see, e.g., Supreme Court Decisions 2002Da57935, Nov. 13, 2003; 2006Da39157, Jul. 10, 2008); furthermore, the removal of a building constitutes a final disposition of ownership; thus, the owner is entitled to remove the building only in principle.

(See Supreme Court Decision 87Meu1737 delivered on May 10, 198). Therefore, in order to claim the removal of a building and the delivery of a parcel of land for the reason that the owner of the parcel of land was unable to occupy the parcel of land due to the existence of the building on the ground that ownership was obstructed, the owner of the parcel of land must file a claim against the owner of the building. The evidence submitted by the Plaintiff alone is insufficient to recognize the owner of the building on the ground that the defendant is the owner of the building in this case, and there is no other evidence to support this otherwise

3. Accordingly, the instant claim is dismissed as it is without merit.

참조판례

-(변경)대법원 2003. 11. 13. 선고 2002다57935 판결

-대법원 1988. 5. 10. 선고 87다카1737 판결

-대법원 2008. 7. 10. 선고 2006다39157 판결

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