Before becoming the object of the partitioned ownership of a partitioned building, registration of preservation of ownership of a person who has renounced all equity contracts without any condition shall be null and void.

Before becoming the object of the partitioned ownership of a partitioned building, the registration of preservation of ownership by a person who is not eligible to become the original acquisitor by waiver of all equity contracts without any condition before becoming the object of the partitioned ownership shall be null and void, and

Article 57 of the Registration of Real Estate Act

2018da215803 Registration of cancellation of registration of initial ownership, etc.

OOOOOOOOOOO

Republic of Korea 1

December 14, 2018

April 5, 2019

1. The Plaintiff:

A. Defendant OOO General Construction Co., Ltd carries out each procedure for cancellation of registration of each registration of initial ownership completed on December 18, 2007 by OO district registry office of OO district as to one half of the real estate listed in the attached list Nos. 1, 3, 4, and 6 of the attached list, and each procedure for cancellation of each registration of initial ownership completed on July 9, 2007 by OO district registry office of OO district as to one half of the real estate listed in the attached list Nos. 2 and 5 of the attached list;

B. The defendant Republic of Korea has expressed his/her intent to accept the registration of cancellation of the registration of ownership preservation of defendant OO integrated construction companies, which was completed as of December 18, 2007 by OO district registry offices of OO district with respect to one half of the real estate listed in paragraph (4) of the attached list of real estate.

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

Cheong-gu Office

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is an association authorized on July 27, 200 under the former Housing Construction Promotion Act in order to remove O houses located in the OO-dong 312-00, and 307-00 of the Seoul OO-gu O-dong, and reconstruct the apartment (16 households in the unit of the association members, 18 households in general, hereinafter “the apartment of this case”) on the ground (hereinafter “the reconstruction project of this case”).

B. The contents of the Plaintiff’s articles of association (hereinafter “articles of association”) related to this case are as follows.

Article 5 (Method of Enforcement)

(1) A housing developer under the Housing Construction Promotion Act shall invest in kind the land owned by a member in the project implementation district and build incidental and welfare facilities, such as multi-family housing and commercial buildings. In such cases, the housing constructor of the reconstruction association shall be the joint owner.

(2) The association or implementer shall procure construction expenses, incidental expenses, etc. necessary for implementing the projects pursuant to a separate agreement.

Article 8 (Qualification for Membership)

(1) A person qualified for membership shall be an apartment house (including a site attached thereto), river site, or house ownership registration within the project zone that the association implements, and the member shall be a person who consents to reconstruction.

Article 10 (Rights and Duties of Members)

(1) Members of a cooperative shall have the following rights and duties:

1. Right to request sale of buildings, etc. prescribed by a management and disposal plan;

5. Responsibility for the payment of dues and liquidation money;

6. Obligations to observe relevant Acts and subordinate statutes, regulations, rules, and resolutions of a general meeting;

Article 35 (Real Estate Trusts)

(1) In order to protect the rights of members and facilitate the promotion of a reconstruction project, real estate owned by members of an association within the premises for reconstruction may be registered as a trust.

(2) A cooperative shall exercise the property right entrusted to it in compliance with the purpose of a rebuilding project implementation, and when a reconstruction project is completed, it shall immediately cancel the trust and return the property right to the relevant

Article 36 (Application for Sale, etc.)

(1) Each cooperative shall notify each partner of the following matters within ten days from the date it obtains authorization for establishment:

1. An application form stating the period, place, method, criteria, reference matters, etc. for application for parcelling-out and an application form for parcelling-out;

2. Details of the covenant and business action plan of the authorized association;

(2) A cooperative member who intends to purchase housing, commercial buildings, or welfare facilities shall submit an application for parcelling-out accompanied by evidentiary documents, such as a certified copy of the register of land and buildings, within the period for application for parcelling-out determined and notified by the cooperative.

(3) An application for parcelling-out under paragraph (1) shall be submitted by registered mail to certify that the application has been sent within the period for application for parcelling-out by mail.

(4) Members who do not apply for the period of application for parcelling-out shall, in principle, liquidate cash: Provided, That this shall not apply to cases of applying for parcelling-out before the members' floor or unit drawing date.

(5) Members of multi-family housing shall be fairly conducted in the presence of police officers when drawing floors or units of housing, and the result of lottery shall be reported to the competent Gu office housing and the Korea Housing and Commercial Bank within seven days.

Article 37 (Standards for Management and Disposal Plans)

A management and disposal plan for property owned by members shall be formulated in accordance with the following standards:

1. In principle, apartment houses, etc. to be newly built on the basis of the area of the previous tenement house in which members have invested shall be sold, but multi-family housing shall be supplied to

2. The appraisal of the previous land and buildings shall be the amount obtained by taking an arithmetic mean of the appraised values of at least two certified appraisal institutions.

3. The standard amount appraised pursuant to the provisions of subparagraph 2 may be the land and buildings in the area where the existing apartment house and the existing detached house are jointly implemented; and

4. The area of multi-family housing, etc. to be sold in lots after the implementation of the project shall be based on the sale area, and the site shall be co-owned shares in proportion to the area and expenses of the apartment, etc. sold in lots;

5. In cases of multi-family housing purchased by one member of an O house (16 households), an exclusive area of the multi-family housing shall be determined at approximately 24.08 square meters;

C. The Plaintiff, in collaboration with the first △ Construction Co., Ltd., planned to implement the instant reconstruction project, and reported the commencement of the project on March 9, 2002 after obtaining approval of the project plan on October 23, 2001, but thereafter, the joint project proprietor was changed to Defendant OO integrated Construction Co., Ltd. (hereinafter “Defendant O comprehensive Construction”) on October 30, 2002 and on March 15, 2005, respectively, to △△ integrated Construction Co., Ltd. (hereinafter “△ integrated Construction”).

D. From around 2005, the Plaintiff entered into an O-house rebuilding share agreement (hereinafter “instant share agreement”) to determine the rights and obligations between the parties related to the instant reconstruction project with the △ Comprehensive Construction. Of them, the part relating to the instant case is as follows.

Article 3 (Status and Business Principles of Both Parties)

1. The Plaintiff and △ Comprehensive Construction is a joint project proprietor who is responsible and bound in accordance with the Housing Construction Promotion Act and the relevant laws and regulations, and shall execute the contract in good faith so that the project can be completed successfully.

2. In relation to the instant contract, the Plaintiff’s act representing the entire association members and the Plaintiff’s act performed in accordance with the terms and conditions of this contract is deemed to be constituted with the overall authority and duty of the association. At the same time, the Plaintiff’s member may not demand all of the rights to the

Article 4 (Method of Implementing Projects)

1. The Plaintiff’s provision of land of 312-00 OO-dong, Seoul OO-dong, owned by the Plaintiff and the Plaintiff’s members, and the supply of the newly constructed apartment and its ancillary and welfare facilities as a substitute. In this case, the land to be provided to the △ Comprehensive Construction refers to the land in a state that the Plaintiff secured the ownership of the land and the right to use the site, and does not hinder the commencement of the △ Comprehensive Construction.

2. The △ General Construction shall provide the Plaintiff with the newly built apartment and ancillary facilities on the site referred to in paragraph (1) provided by the Plaintiff in accordance with the design documents approved by the head of the competent local government in accordance with the terms and conditions of the contract, and the construction of the building facilities on the land provided by the Plaintiff in payment for the land provided by the Plaintiff. The remaining construction facilities shall be sold in general and appropriated from the construction cost and the project cost (hereinafter referred to as the “construction cost”). However, even if the construction

Article 8 (Supervision over Authorization and Permission Affairs)

1. All the affairs related to the reconstruction project of this case, including authorization and permission, shall be supervised by the plaintiff in the name of the joint project undertakers, but the △ Comprehensive Construction shall actively cooperate with the expenses to be borne by the plaintiff.

Article 9 (Adjustment of Civil Affairs, etc.)

1. The rearrangement of rights to previous land, etc., and the preservation of apartment and welfare facilities occupied by the association members after the completion of construction facilities shall be treated as the responsibility and expense of the plaintiff or the plaintiff's association members, and the expenses for cadastral adjustment by a survey, for registration of geological inspection and for cancellation thereof, for related expenses, such as securing ownership of a person who does not agree with a resolution for reconstruction, for the preservation, registration, and other public actions for the apartment and welfare facilities sold in lots after the completion of construction facilities, shall

Article 12 (Subsidization of Project Expenses)

1. The Plaintiff and △ integrated construction shall determine the subsidization of the following business expenses through mutual consultation:

(4) The preservation registration and rent costs corresponding to the Plaintiff’s share shall be borne by the Plaintiff for various registration costs, taxes and public charges, etc. for the remaining general apartment units, and borne by the occupants of the △ comprehensive construction or the sale of the remaining general apartment units.

Article 15 (Sale by Units)

1. Within 30 days after the establishment of the management and disposal plan under Article 14, the Plaintiff shall complete the construction of the floor, lake, lot, and union member sales contract in the presence of the police officers on the basis of the principle of open interest in consultation with the △ General Construction

2. If the size of a building facility sold in lots exceeds or falls short of the size of payment in kind, the difference shall be settled, and the settlement money shall be paid before the day and occupied: Provided, That if the schedule for payment of settlement money of the plaintiff is somewhat late, the settlement money may be occupied after consultation with the plaintiff.

3. If a member of the apartment facility supplied fails to comply with the drawing lots or fails to conclude a sales contract within 15 days from the date of conclusion of the sales contract, the Plaintiff shall be deemed to have no intention to purchase the apartment facility, and the construction facility concerned shall take measures (general sale) in accordance with the rules on housing supply.

Article 16 (General Sale in Lots)

1. The remaining construction facilities shall be sold in lots to the members of the Plaintiff, and the time of sale, methods and procedures for the sale shall be governed by the rules on housing supply, and the general sale price shall be determined by the comprehensive construction by the management and disposal plan of

2. The payment of the general sale price shall be made by opening a joint account by the Plaintiff and △ Comprehensive Construction Co., Ltd. and by managing the passbook, through consultation with the Plaintiff and △ Comprehensive Construction Co., Ltd.

3. In cases of unsold parcels in general apartment lots, incidental or welfare facilities, etc. by the date of occupancy, △ comprehensive construction shall be responsible and managed;

4. All other profits generated from the members, contributions, overdue charges, etc. of the sale price shall be the revenue of the △ Comprehensive Construction.

Article 31 (Appropriation and Settlement of Construction Project Costs)

1. The construction project cost for the △ comprehensive construction project under Article 4 (2) shall be appropriated with the liquidation money for the association members under Article 15, the settlement money for the general sale under Article 16 (hereinafter referred to as the "settlement money, etc."), and the receipt and management of the liquidation money, etc. including the general sale amount, shall be completed and the settlement money, etc. shall be sold in lots after the completion of the construction of the

3. The plaintiff shall pay the late payment charge applicable to the delayed payment rate of the bank when the plaintiff's member delays the repayment of the moving expenses and the payment of the liquidation money, etc. for moving.

Article 41 (Other Matters)

2. The method of this contract shall be the share system, provided that the plaintiff does not bear contributions, expenses, and other charges specified in the contract provisions.

E. On May 5, 2005, Defendant OO General Construction waived all the share agreements entered into with the Plaintiff on the instant reconstruction project without any condition, and from September 2005, △ integrated Construction commenced with the instant apartment construction and completed in fact around May 2007. However, as the internal circumstances of △ Comprehensive Construction and the instant apartment cannot be carried out due to cancellation of registration of business, etc., the Plaintiff notified the termination of the instant share agreement to the △ General Construction on October 24, 2013, and then changed the said share agreement to OOOO, and obtained approval for the use of the instant apartment on September 10, 2015.

F. Meanwhile, among the apartment buildings in this case, each of the real estate listed in the separate sheet of real estate (hereinafter referred to as "each of the real estate in this case"), which is a part of 16 households of the members of the association among the apartment buildings in this case, was registered as a co-owner of each of the 1/2 shares of the plaintiff and defendant OO comprehensive construction by the entrustment of registration according to the provisional attachment decision or provisional disposition decision, etc. that was received by the non-party offender, etc., without obtaining approval for the use under the Building Act. The registration of the entry was completed on August 3, 2017 following the seizure of the ownership shares of the 1/2 shares of the 1/2 shares among the 4 real estate in this case.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 17, 24, 25 (including additional numbers), Eul evidence 1 and 2, the purport of the whole pleadings

2. Assertion and determination

A. Summary of the plaintiff's assertion

Since each real estate of this case was acquired solely by the Plaintiff, each registration of preservation of ownership of Defendant OO comprehensive construction, which was completed with respect to one-half shares of each of the real estate of this case, shall be cancelled as the cause invalidation. The Defendant Republic of Korea, who completed the registration of seizure, based on the above registration of preservation of ownership of Defendant OO comprehensive construction on the real estate of this case, shall express his/her intention of acceptance on the registration of cancellation of the above registration of preservation of ownership.

B. Determination

1) The time of original acquisition by each household of the apartment of this case

If a building consists of a minimum pole, roof, and main wall and has a structure that can be seen as an independent building under social norms, the owner of the building shall acquire the ownership of the building in its original condition (see, e.g., Supreme Court Decisions 2000Da51872, Jan. 16, 2001; 2007Da23975, Jan. 18, 2008). Meanwhile, in order to establish sectional ownership of one building, one building exists in an objective and physical aspect, and the separate part of one building should be independent in its structural structure and use, and the physically partitioned part of one building should be the object of sectional ownership without changing the physical form and quality of the building. Here, a separate act is a kind of legal act that seeks to be divided into a specific part of the building without any special restriction or method, and an owner of the disposal authority’s external distinction is objectively recognized (see, e.g., Supreme Court Decision 2014Da983, Apr. 28, 2014).

In full view of the above facts and all the evidence as seen above, it is reasonable to view that the apartment building of this case was a type and structure that can be seen as an independent building under the generally accepted social norms around early 2007 after the construction was completed by △ integrated Construction, and it also meets the requirements for establishing sectional ownership. Therefore, the original purchaser of each real estate of this case shall be determined on the basis of the beginning of 2007.

However, although Defendant OO General Construction was jointly carried out with the Plaintiff for the reconstruction project of this case, it cannot be the original acquisitor of each real estate of this case, since the apartment of this case, as an independent building under social norms, has renounced all of the share agreements on May 5, 2005, before it becomes the object of sectional ownership independent in structural structure and use.

2) The original acquisitor of each real estate of this case

A) Ownership of a newly constructed building is in principle to acquire the ownership of the building from a person who built the building in his/her own effort and materials in the original condition (see, e.g., Supreme Court Decision 2009Da66990, Jan. 28, 2010). In cases where, in the construction contract of a new building, the contractor and the contractor agree to vest in the contractor the ownership of the completed building, such as where the contractor would obtain a construction permit under the name of the contractor and the contractor to register the preservation of ownership, even if the contractor completed the building in their own effort and materials, the ownership of the building shall be reverted to the contractor in the original condition (see, e.g., Supreme Court Decision 2014Da36

Meanwhile, a reconstruction association established under the Act on the Ownership and Management of Aggregate Buildings and the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003), which is an association that is not a corporation for the purpose of removing an existing old-age building and implementing a reconstruction project, is premised on the premise that the land owned by the association members in the project area is invested in kind in the reconstruction association and the housing on its ground shall be demolished following the implementation of the project. Therefore, in implementing a construction contract where a reconstruction association concludes and implements a construction project to build an aggregate building on the site invested by the association members between the construction company and the construction company, it does not mean that the original acquisitor acquires the sectional ownership of a specific part of the newly constructed aggregate building by providing a part of the new construction fund to a third party, and it does not mean that the original acquisitor acquires the sectional ownership of the newly constructed aggregate building by examining all the regulations and the construction contract contents (see Supreme Court Decision 2003Da3072, Jul. 22, 2005).

B) In full view of the aforementioned facts and all the evidence as seen earlier, the Plaintiff and △ integrated construction is a joint project proprietor of the instant apartment reconstruction project under the former Housing Construction Promotion Act, and as a substitute for the implementation of the said reconstruction project, the Plaintiff made a joint investment in the project site by providing business expenses, and the Plaintiff agreed to ensure that the association or the association members share apartment in return for the provision of the project site, and that the △ integrated construction would distribute profits with the guarantee of general apartment units, etc. in return for the provision of the project cost. Thus, the instant equity agreement is deemed to have the nature of the association agreement under which the Plaintiff and △ integrated construction agreed to make mutual investments for the joint operation of the said reconstruction project (see Supreme Court Decisions 2007Da32849, Oct. 11, 2007; 2009Da47432, Oct. 29, 2009).

However, since the provisions of the Civil Act concerning a union are a voluntary provision, if there exists a special declaration of intention between the parties, it shall be in accordance with a declaration of intention prior to the provisions of the Civil Act (see, e.g., Supreme Court Decisions 87Meu1448, Mar. 8, 1988). It does not necessarily require that all assets which a union acquires in relation to the joint operation business should be reverted to the partners of the union, but may belong to each partner of the union according to the partnership agreement’s agreement. Such agreement may be made explicitly and implicitly (see, e.g., Supreme Court Decisions 2001Da75332, Jan. 11, 2002; 2009Da105406, May 17, 2012).

C) Examining whether the original purchaser of each real estate of this case, among the apartment buildings of this case, belongs to the plaintiff or the original purchaser of each of the apartment buildings of this case, among the apartment buildings of this case, based on the above facts of recognition and the plaintiff's articles of association and the share agreement of this case, it is reasonable to consider that the plaintiff, after obtaining approval of the project plan on October 23, 2001 under the former Housing Construction Promotion Act, entered into the share agreement with the Dok comprehensive Construction Corporation, which is the work executor, with the share ownership agreement. ② According to the plaintiff's articles of association, the joint project proprietor, who is the work executor, has the right and duty to secure the construction cost necessary for the implementation of the project, has the right to own the land within the project site, and the members shall bear the burden of investing in the association with the land owned within the project site. ③ According to the share agreement of this case, the above reconstruction project provides the land within the project site and provide the plaintiff with shares by constructing the new apartment facilities at least for construction of the plaintiff and the remaining members's share ownership and the association.

3) Sub-determination

Therefore, the registration of preservation of ownership of Defendant OO integrated construction on one-half portion of each of the instant real estate shall be cancelled as a cause null and void. The Defendant, who completed the registration of seizure based on the above registration of preservation of ownership of Defendant OO comprehensive construction on one-half share of the instant four real estate, is obligated to express his/her consent to the cancellation of the registration of preservation ( Defendant OO comprehensive construction is unable to comply with the Plaintiff’s request because it was failed to receive settlement of funds invested in the instant new apartment construction). However, even if Defendant OO comprehensive construction has a claim against the Plaintiff in relation to the instant reconstruction project, such circumstance alone alone cannot reject the cancellation of each of the above registrations of preservation of ownership, which is null and void of the cause. Thus, the above Defendant’s assertion is without merit).

3. Conclusion

The plaintiff's claim is justified, and all of them are accepted, and it is so decided as per Disposition.