[1] Criteria for determining whether a specific movable is affiliated with a real estate

[2] In a case where a third party's article attached with his/her source of authority has no economic value even if it was separated, the ownership of the attached article and the standard for determining economic value

[3] The case holding that a gas supplier cannot file a claim for return of unjust enrichment pursuant to Article 261 of the Civil Code against an apartment's council of occupants' representatives for an apartment site, where the gas supply facility established in an apartment site was owned by the owner of the apartment unit who acquired the right to share of the site due to the conformity with the constituent parts constituting

[1] Article 256 of the Civil Act / [2] Article 256 of the Civil Act / [3] Articles 256 and 261 of the Civil Act

[1] Supreme Court Decision 2003Da14959, 14966 Decided May 16, 2003 / [2] Supreme Court Decision 74Da1743 decided April 8, 1975 (Gong1975, 8412)

Plaintiff

The Council of Residents' Representatives (Attorney Yang Jong-soo, Counsel for the plaintiff-appellant)

Gwangju High Court Decision 2005Na8834, 8841 decided May 24, 2006

The part of the judgment of the court below concerning the conjunctive claim is reversed, and that part of the case is remanded to the Gwangju High Court. The plaintiff (Counterclaim defendant)'s appeal is dismissed.

Each ground of appeal is examined.

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)

A. In order for a movable to be recognized as belonging to a real estate, it shall be determined by considering whether the movable is attached and combined to the extent that it cannot be separated without causing damage to the movable property or excessive expenses, and whether it can become an object of separate ownership in transaction with an independent economic utility from the existing real estate in its physical structure, use and function (see Supreme Court Decision 2003Da14959, 14966, May 16, 2003, etc.). The proviso of Article 256 of the Civil Act, which provides for the exception to the ownership of the attached object, provides for the exception to the ownership of the attached object, shall be separate from the case where the attached object does not affect the other's right that the attached object belongs to the owner of the real estate if there is no economic value, and the determination of economic value shall be based on whether the attached object is independent of the ordinary economic utility of the attached object under social norms (see, e.g., Supreme Court Decision 74Da17437, Apr. 8, 1975).

B. In light of the above legal principles and records, the court below acknowledged the facts as stated in its decision after compiling the adopted evidence, and judged that the gas supply facilities of this case were owned by the sectional owners of the apartment of this case who acquired the right to share in the site because they were consistent with the constituent parts of the building site when the apartment of this case was constructed in the apartment of this case. There is no error in the misapprehension of legal principles as to the conformity as otherwise alleged in the ground of appeal.

2. As to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)’s ground of appeal

According to the judgment below, after compiling the selected evidence, the court below acknowledged the facts as stated in its decision, and determined that the non-party, a gas supplier, and a gas consumer, at the time of the first conclusion of the gas supply contract of this case (hereinafter referred to as the "gas supply industry"), was responsible for installing the gas supply facility of this case at his own expense and exclusively using and benefiting from the gas supplier's own expense, and at the same time the non-party is responsible for safety management. However, if a continuous termination of the gas supply contract or autonomous management begins due to a change in the opinions on the gas supply conditions, and the new management entity becomes unable to supply the gas no longer on the grounds that the new management entity wishes to change the gas supplier, etc., the management entity of the apartment of this case evaluated the value of the remaining facilities at the time of suspension of the gas supply, and thereafter, the plaintiff acquired the status of each party under the gas supply contract of this case from the non-party, and the defendant acquired from the Domination industry. However

According to the records, if the gas supply facilities of this case were to correspond to the apartment of this case, the plaintiff asserted that the plaintiff filed a claim for return of unjust enrichment against the defendant pursuant to Article 261 of the Civil Code (in this case, the plaintiff cannot file a claim for return of unjust enrichment against the owner of the apartment of this case, separate from claiming for return of unjust enrichment against the owner of the apartment of this case). It can be seen that the plaintiff's assertion that the plaintiff is entitled to claim the return of unjust enrichment against the owner of the apartment of this case, as the court below acknowledged in this argument, to seek payment of the price by the express or implied agreement as the owner of the apartment of this case. In addition, the tobacco industry concurrently serves as the owner and manager of the apartment of this case at the time of entering into the gas supply contract of this case with the non-party, but the status as the owner of the apartment of this case as the owner of the apartment of this case can be deemed to have been transferred to the owner of the apartment of this case as a manager of the apartment of this case, and therefore, it can be viewed as the non-party's industrial relationship with this case's agreement.

Therefore, the court below should have judged whether the above agreement (the express and implied agreement is inconsistent and it is difficult to specify whether it is a bitson agreement) has been established and its contents and the existence of the defendant's obligation to pay money to the plaintiff based on the above agreement by sufficiently examining and examining the circumstances leading up to the formation of the explicit and implied agreement, the contents of the agreement, the grounds for the defendant's succession to the status of the bitral industry and the scope of the rights and obligations succeeding to the bitral industry, as recognized by the court below. However, the court below ordered the defendant to pay money based on the above agreement without doing so. Such decision of the court below is erroneous in the misapprehension of legal principles as to the status of the council of occupants' representatives of aggregate buildings, or in the misconception of facts due to the violation of the rules of evidence or incomplete deliberation. The defendant'

3. Therefore, the part of the judgment of the court below regarding the conjunctive claim is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal concerning the main claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)