Whether or not a request for the removal of a commercial building may be added at the appellate court after a request for the delivery of land at the lower court

The removal of a building is intended to complete the delivery of the land by removing the obstacles impeding the possession of the land when the land is transferred, and it is a claim for removal of obstacles due to the same right to request the delivery of the land, so both parties do not change the basis of the claim.

Article 235 of the Civil Procedure Act

Supreme Court Decision 4294Da1145 delivered on April 28, 1962 (Supreme Court Decision 7238 delivered on February 28, 1962, Article 235(15)93 delivered on April 28, 1962, Article 235(15)93 delivered on April 28, 1962, and Article 235(17)937 of the Civil Procedure Act

Korea

Defendant

Seoul Central District Court (68Ga10817) of the first instance court

The appeal is dismissed.

The original judgment shall be modified as follows:

The defendant removed 4 square meters from the 44-2 large 277 square meters and 667 won per month from the land name of Seodaemun-gu Seoul Metropolitan Government to the plaintiff by removing 4 square meters from the 4th square meters and the 4th square meters from the 4th ground surface of the building of the building of the building of the building of the 4th square meters and ordered 4 square meters from May 1, 1968 to the completion of the above site name.

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

The judgment and provisional execution declaration as referred to in paragraphs (3) and (4) of this Article (request expansion in the trial)

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

The total costs of litigation shall be borne by the plaintiff.

(1) The defendant's attorney claims for the removal of a provisional building on the above land after the plaintiff filed a claim for the delivery of the land at the court below, and at the trial of the party, added the claim for removal of the provisional building on the above land, and thus, it is unreasonable for the defendant's attorney to see whether the removal of the provisional building is based on the ground of the claim, so it is for the complete delivery of the same land by removing the obstacles impeding the possession at the time of delivery of the land, and thus, it is for the same claim for removal of the obstacles

(2) The Defendant’s possession of the land as the usage fee with the permission from the Plaintiff to April 30, 1968 for the use of 44-2 to 277 of Seodaemun-gu, Seoul, the owner of which is the Plaintiff, from the Plaintiff, KRW 2,67 won per month as the payment key of KRW 2,67,00 per month. The fact that the Defendant owned the building, such as the entry in the order above 4th land, is no dispute between the parties, and according to the evidence Nos. 4 and 5, the Plaintiff, on May 18, 1968, sent a notice to the Defendant to request for the use of the above land until June 20, 1968.

On April 30, 1968, the expiration date of the above period of use, the defendant asserted that since the defendant applied for the renewal of the contract on the land as to this case to the general manager of the Seocho-gu Seoul National Resale Office, Seoul, which is the expiration date of the above period of use, it is impossible to respond to the plaintiff's claim. However, even if the defendant applied for the renewal of the contract, the above fact alone does not constitute a ground to justify the defendant's possession of the land in this case. Therefore, the above argument is without merit, and there

Therefore, the defendant is obligated to remove 4 square meters from the 44-2 large 277 square meters and 67 square meters in Seoul Seo-gu, Seodaemun-gu, Seoul and 1 to remove 4 square meters from the 4th square meters in the unit of the building on the 4th square meters in the line of the land indicated in the separate drawing, and order 4 square meters in the same site from May 1, 1968 to the above site name, and pay damages equivalent to 2,67 won in the rate of 2,67 won in the month from May 1, 1968 to the above site name. Thus, the original judgment as to the above site name and money payment is just and without merit, and the defendant's appeal is somewhat different from the original judgment, so the removal part of the building expanded from the original judgment is legitimate, and thus, the plaintiff's new establishment of provisional execution is denied, and the costs of lawsuit shall be sold as per Disposition by applying Articles 89, 95 and 96 of the Civil Procedure Act.

Judges Kim Yong-chul (Presiding Judge)