In a case where an agreement is reached to vest the ownership of a new building in a new building construction contract to a contractor, whether the ownership of the building is originally vested in the contractor (affirmative), and in a case where several persons as an aggregate building jointly work owner and concluded the said contract, the standard for determining the ownership of each section of exclusive ownership of the aggregate building (=the agreement of the joint owners)

The ownership of a new building is, in principle, acquired from a person who constructed a building in his/her own effort and materials. However, even if the contractor completes a building in his/her own effort and materials in the construction contract, if the contractor and the contractor agree to vest in the contractor the ownership of the completed building, such as granting a construction permit under the name of the contractor and granting a registration of preservation of ownership, the ownership of the building shall be vested in the contractor. In this case, if the new building is an aggregate building and a contract for construction is concluded jointly with several persons, the ownership of the building shall be vested in the contractor.

Articles 105, 187, and 664 of the Civil Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Plaintiff

Defendant (Attorney Ansan-jin et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2008Na40556 Decided July 21, 2009

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

1. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning, and received the Defendant’s defense against the Plaintiff’s claim seeking the return of the lease deposit and simultaneous performance of the instant lease deposit against the Plaintiff’s claim seeking the surrender of the instant building on October 21, 2005, on the ground that the Plaintiff, who acquired the ownership of the instant building, succeeds to the lessor status, by entering into a lease agreement with Nonparty 1 and Nonparty 2, the nominal owner at the time of the contract, and the Defendant acquired the opposing power by entering into the instant building with Nonparty 1 and Nonparty 2, who was represented by the said Nonparty 3, and by entering into the instant building on October 21, 2005.

2. However, we cannot accept the above judgment of the court below.

The ownership of a new building is, in principle, acquired from a person who constructed a building in his own effort and materials at the original level. However, even if the contractor completes a building in his own effort and materials in the construction contract, if the contractor and the contractor agree that the ownership of the completed building will vest in the contractor by obtaining a construction permit under the name of the contractor, the ownership of the building shall be vested in the contractor. In this case, if the new building is an aggregate building and a building is jointly owned by several persons, and the contract is concluded with the contractor, the ownership of the building shall be vested in the contractor, and if the building is jointly owned by the owner, the joint owner shall comply with the agreement between the joint owner of the building who will originally vest in the ownership of each section of exclusive ownership (see Supreme Court Decision 2004Da36

According to the records: ① on June 200, Nonparty 3 was awarded a contract with Nonparty 1, the title holder of the building permit for the construction of a new apartment on the Jongno-gu Seoul, Jongno-gu, 181-77 site; on September 13, 2002, Nonparty 4, who was the owner of the building adjacent to the above land, agreed to establish one apartment house on both sites; ② at the time of the above agreement, subparagraphs 1, 201, and 401, respectively, owned by Nonparty 4, and Nonparty 3 agreed to own the remaining sectionally owned building in lieu of the construction cost; ③ Nonparty 2 subcontracted the above construction to Nonparty 2, the title of the building; ④ Nonparty 2, on September 27, 2002, purchased the ownership transfer registration under the name of Nonparty 1 and Nonparty 2, who was the owner of the building; and ④ Nonparty 2, on the other hand, acquired the ownership transfer registration under the name of the Plaintiff and Nonparty 2, who was the owner of the building.

Therefore, the non-party 1, who concluded a lease contract on September 16, 2005, cannot be the original acquisitor of the building of this case. Furthermore, since the status as the construction business operator for the building newly built by the non-party 2 as at the time of the conclusion of the above lease contract was already transferred to the plaintiff via the non-party 5, the non-party 2 cannot be the original acquisitor of the building of this case (i.e., the non-party 2 did not enter into the lease contract of this case as the lessor, and (ii) according to the non-party 2's testimony at the first instance court, the non-party 2 did not participate in the lease of this case. Thus, the court below's finding that the non-party 2 granted the right to represent the building of this case to the non-party

Nevertheless, the court below determined that the non-party 1 and the non-party 2 jointly acquired the building of this case and the defendant concluded a valid lease contract with them, and accepted the defendant's defense of simultaneous performance in violation of the rules of evidence, or erred by misapprehending the legal principles as to the original acquisitor of new building.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)