Plaintiff (Attorney Yang Chang-soo, Counsel for the plaintiff-appellant)

Defendant

June 21, 2011

Seoul Central District Court Decision 2010Da144023 Decided December 29, 2010

1. Revocation of the first instance judgment.

2. The defendant shall execute the procedure for cancellation of registration in the name of the owner on the unauthorized Building Management Register kept in Seongbuk-gu Seoul Metropolitan Government Office with respect to the building listed in the attached list.

3. All costs of the lawsuit shall be borne by the defendant.

Disposition Paragraphs 1 and 2

1. Basic facts

A. On April 21, 2005, the Plaintiff owned a building indicated in the separate sheet (hereinafter “instant building”) which is an unauthorized building located on the land located on the land of 297 square meters in Seongbuk-gu, Seoul (hereinafter omitted), a state-owned land, and sold the instant building to the Nonparty for KRW 30 million. Since the sale and purchase of the instant building is necessary under the administrative procedure for the sale of the said state-owned land, the Nonparty’s failure to obtain the said state-owned land and returned the name on the ledger for the management of the building without permission for the said building to the Plaintiff at the same time, and if the process of the said administrative procedure is not smooth, the Plaintiff entered into an agreement with the Plaintiff on December 30, 2006 to re-transfer the name on the ledger for the management of the building without permission for the said building to the Plaintiff (hereinafter “instant agreement”).

B. Under the instant contract on February 6, 2006, the Nonparty changed the name of the owner of the building management ledger of the instant unauthorized building to himself/herself, and entered into a sales contract with the Defendant on January 17, 2008 for KRW 60 million after receiving the down payment of KRW 60 million for the instant building. On January 23, 2008, the Nonparty received KRW 54 million from the Defendant and changed the name of the owner of the building management ledger of the said unauthorized building on March 19, 2009.

C. The Nonparty was sentenced to imprisonment with prison labor in the case of Goyang-gu District Court 2009 order 2009 order 2060, 2010 order 85 (merged) for the suspicion of embezzlement that changed the name of the owner of the building management ledger of the instant unauthorized building in question to the Defendant (after that, the Nonparty’s appeal became final and conclusive on the grounds of the judgment dismissing the appeal in the case 2010No786).

D. Meanwhile, if the instant building was built before April 8, 1982 and is demolished due to an urban planning project, etc. in accordance with the Seongbuk-gu Seoul Metropolitan Government Ordinance on the Payment of Compensation for Unauthorized Building Maintenance and Improvement Projects, compensation shall be paid to the owner.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 4, evidence 7-2, 3, 4, and Eul evidence 1, the purport of whole pleadings]

2. The parties' assertion

As the cause of the instant claim, the Plaintiff: (a) made a sales contract on the instant building by deceiving the Plaintiff even though the Nonparty did not have the intent or ability to re-transfer the name of the owner of the building management ledger without permission on the instant building; (b) concluded a sales contract on the instant building again with the Defendant and changed the name of the said owner in the future; (c) however, even if the Defendant was registered as the owner in the building management ledger, the Plaintiff still holds ownership, not the ownership; (d) in the first instance, the Defendant asserts that the Plaintiff had the obligation to cancel the name of the Defendant subject to unauthorized Building Management, such as the written claim for the exclusion of interference with ownership, and (e) at the first instance, the Plaintiff was obligated to pay the remainder of the contract in the instant case to the Plaintiff before paying the remainder; and (e) the buyer was entitled to waive the down payment and cancel the contract; or (e) the Nonparty was unable to perform the contract by selling the instant building to the Defendant, thereby cancelling the contract in accordance with Article 546 of the Civil Act against the Defendant.

As to this, the defendant properly purchased the building of this case from the non-party and registered it as an owner on the unauthorized Building Management Register, the defendant asserted that it cannot comply with the plaintiff's claim of this case.

3. Determination

A. The owner of a building without permission cannot acquire ownership of the building unless the transferee of the building without permission has completed the registration of ownership transfer, and cannot be deemed to have a customary real right equivalent to ownership (Supreme Court Decision 2006Da49000 Decided October 27, 2006). The ownership of the building of this case, which is an unauthorized building, still remains in the original purchaser, still remains in the Plaintiff. Therefore, barring any special circumstance, it is reasonable to deem that the Plaintiff, the owner, can seek the cancellation of the ownership against the Defendant, the title holder on the management ledger of the building without permission, as the removal of interference based on the ownership.

B. Meanwhile, at the same time, the Nonparty, upon receiving a state-owned land under the instant contract, returned the name on the building management ledger without permission of the instant building to the Plaintiff, or bears the obligation to re-transfer the name on the building management ledger without permission of the instant building to the Plaintiff until December 30, 2006 if administrative procedures are not smooth. As seen earlier, it is reasonable to deem that the Nonparty’s obligation was impossible to perform by selling the instant building to the Defendant and transferring the name on the building management ledger without permission to the Defendant. According to the evidence No. 10, according to the Plaintiff’s statement of evidence No. 10, the Plaintiff expressed his intention to exercise the right to rescission under Article 546 of the Civil Act against the Nonparty on March 2, 2011, and delivered his declaration of intention to the Plaintiff in accordance with the decision of public notice by the court No. 2011Ka1480, Apr. 1, 2011, the instant contract was lawfully cancelled since the Plaintiff did not have any right to transfer the instant building to the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of its reasoning, and the judgment of the court of first instance is unfair on the ground of its conclusion, so it is revoked, and it is so decided as per Disposition by the defendant to order the execution of the registration procedure.

[Attachment]

Judge Jin-hun (Presiding Judge)