[1] Whether the Act on the Ownership and Management of Multi-Unit Residential Building also applies to the legal relationship between the sectional owners with respect to the right to use site (affirmative)

[2] In a case where a share of a site corresponding to the ratio of the area of each section of exclusive ownership prior to the construction of an aggregate building is determined and the right to use the site is scheduled, whether the right to use the site should be acquired only if the share of the site in response

[3] In order to exercise the right to demand purchase under Article 7 of the Multi-Unit Residential Building Act, whether the execution of the right to demand purchase should be possible (negative)

[4] In a case where a right to use a site for a section for exclusive use did not exist from its original purpose, whether a right to use a site may be acquired even if a right to use a site is acquired by transfer of shares other

[1] The Act on the Ownership and Management of Multi-unit Building stipulates the sectional ownership of a building mainly based on one unit, but as long as the sectional ownership relationship is established with respect to each unit of building, the legal relationship between the sectional owners of several buildings in the complex relationship shall be interpreted the same as the relationship among the sectional owners of one unit of building.

[2] In a case where the sectional owners of several buildings constructed on one building or one parcel and formed a complex shared the site of the building, each sectional owner has a legitimate right to use all the site of the building according to the purpose of use, regardless of the share of co-ownership in the site, barring special circumstances such as the existence of separate regulations. Thus, even if a part of the sectional owners who formed the complex owns a share that does not meet the ratio of the size of each section for exclusive use, it cannot be said that the sectional owners have no right to use the site. However, if each sectional owner determined a share that corresponds to the ratio of size of each section for exclusive use prior to the construction of the building and expected to have acquired the right to use the site only if he/she owns the share of the site that complies with the ratio of size of each section for exclusive use.

[3] The "person entitled to claim the removal of the exclusive ownership area" under Article 7 of the Multi-Unit Residential Building Act is sufficient if he/she is in a position to exercise the right to claim the removal of the exclusive ownership area, and whether it is actually possible for him/her to execute the removal of the exclusive ownership area is not a reason to determine the qualification requirement.

[4] The right to use a site for a section for exclusive use refers to the right that a sectional owner has on the site of a building to own the section for exclusive use. On the other hand, the share of a site that became the right to use the site can be disposed of only together with the section for exclusive use, and the right to use the site against this right is null and void, barring any special circumstance, so that the owner of the section for exclusive use can become the right to use the site. On the other hand, if the share of a site becomes the right to use the site for a section for exclusive use, the transferee of the section for exclusive use can not acquire the right to use the site without acquiring the share of the site that belongs to the right to use the section for exclusive use. However, if a section for exclusive use does not have the right to use the site from the original point for exclusive use, the right to use the site

[1] Article 1 of the Multi-Unit Residential Building Act / [2] Article 21 of the Multi-unit Residential Building Act / [3] Article 7 of the Multi-unit Residential Building Act /

[1] [2] Supreme Court Decision 93Da60144 Decided March 14, 1995 (Gong1995Sang, 1598)

Kim Jae-ho (Attorney Lee Jae-hee, Counsel for defendant-appellant)

Gangwon-do et al. (Attorney Park Jae-hwan, Counsel for the plaintiff-appellant)

1. On the Plaintiff (Counterclaim Defendant),

A. The Defendant (Counterclaim Plaintiff)’s lecture number is:

(1) specify the first real estate listed in the separate sheet; and

(2) The sum of 4,00,000 won and the sum of 25% per annum from July 25, 1996 to the date of full payment, and the sum of 80,000 won per month from April 6, 1995 to the date of full completion of the name map of the first real estate listed in the separate sheet.

B. The Defendant (Counterclaim Plaintiff) shall pay the amount of KRW 4,094,684, and the amount of KRW 4,000,000 per annum from July 25, 1996 to the date of full payment.

2. On May 12, 1995, the Plaintiff (Counterclaim Defendant) paid KRW 12,00,000 to the Defendant (Counterclaim Plaintiff) and paid KRW 12,00,000 to the Defendant (Counterclaim Plaintiff) in exchange for the payment of KRW 12,00,00,000 to the Defendant (Counterclaim Plaintiff).

3. The remainder of the main claim against the Defendant (Counterclaim Plaintiff) and the Defendant (Counterclaim Plaintiff)’s counterclaim against the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

4. The costs of litigation are assessed against the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff)’s class among the Plaintiff (Counterclaim Plaintiff), the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) by means of the principal lawsuit and the counterclaim, and the remainder are assessed against each of the Plaintiff (Counterclaim Defendant) and the same Defendant (Counterclaim Plaintiff).

5. Paragraph 1 can be provisionally executed.

The principal lawsuit: The defendant (Counterclaim defendant, hereinafter the plaintiff, hereinafter the plaintiff)'s lecture leap is ordered to 1 real estate listed in the separate sheet, and the defendant (Counterclaim plaintiff, hereinafter the defendant)'s leaple is ordered to 2 real estate listed in the separate sheet, respectively. The defendants pay 4,00,000 won per annum with 25% interest per annum from the day following the judgment of this case to the day of full payment, and 80,000 won per annum from April 6, 1995 to the day of full payment of each real estate listed in the separate sheet.

The costs of lawsuit shall be borne by the defendants and a declaration of provisional execution.

Counterclaim: The plaintiff shall execute each procedure for the registration of ownership transfer on the ground of purchase and sale (the number of the plaintiff's river shall be selected on the ground of sale as of August 26, 1994) of 12,50,000 won from the defendant's river and 12,00,000 won from the same leap, and on the ground of each payment and repayment of 12,00,000 won from the same leapaple, as to the 1st real estate listed in the attached list, and on the leapleleapn, as to the 2nd real estate listed in the attached list to the defendant leapn.

The main lawsuit and the counterclaim shall be judged together.

1. Basic facts

A. The following facts do not conflict between the parties, or are recognized in full view of the entries in Gap evidence 5-1, 2 (each certified copy of the register), Gap evidence 6-7-1, 2 (each notice of assignment of claims and the statement of assignment of claims), and the whole purport of the pleadings as to the testimony of the witness sub-convenion, and there is no counter-proof.

With respect to each of the real estate listed in the separate sheet (hereinafter referred to as "each of the apartment buildings of this case"), each Gwangju metropolitan District Court's Office of Mine (Seoul metropolitan District Court), No. 8117, Apr. 6, 1990, which was received on July 15, 198, filed a registration of transfer of ownership in the name of the non-party right holder on the ground of the successful bid as of July 15, 198, and with respect to the first real estate listed in the same list (hereinafter referred to as "No. 105 of this case"), the registration of transfer of ownership in the name of the plaintiff was completed on August 29, 1994, as of the second real estate listed in the same list (hereinafter referred to as "No. 202 of this case"), on the ground of sale as of August 26, 1994, as of the same day by the same date

The number of Defendant Daple’s 105, and Defendant Daple’s 202, each of the instant 202, possessed and used before April 6, 1990.

During the period from April 6, 1990 to August 28, 1994 where the registration of ownership transfer has been made with respect to each apartment of this case, the above right of staticness recognized the profits equivalent to the rent gained by the Defendants from the possession and use of each apartment of this case as unjust enrichment of the Defendants, and transferred the same to the Plaintiff as of February 5, 1995, and notified the Defendants of the fact of assignment by content-certified mail, and the notification was reached to the Defendants around that time.

2. The plaintiff's principal lawsuit and the defendants' defense and counterclaim

A. Accordingly, the plaintiff is the principal claim of this case and the defendants are obligated to order the plaintiff, the owner of each apartment of this case, 105 of this case, and 202 of this case. The defendants gain profit equivalent to their rent by occupying and using each apartment of this case, from April 6, 1990 to August 28, 194, and from August 29, 1994 to the plaintiff, the plaintiff suffered damages equivalent to the same amount from August 29, 1994 to each of the above orders. Since the plaintiff acquired the right to return the unjust enrichment of this case, the defendants are obligated to return the above rent in full to the plaintiff as unjust enrichment, the defendants are obligated to pay the plaintiff the above rent in full as unjust enrichment. The defendants asserted that the plaintiff's right to claim the purchase of this case's apartment of this case had no right to claim the purchase of this case's apartment of this case under the Multi-Unit Building Act after exercising the right to claim the purchase of this case's apartment of this case 20.

Therefore, it is clear that the above ownership transfer registration was made on the non-party 1, 2, and 11's shares in the above 9-6 site by purchasing the above 9-1's shares in the non-party 2's name, and the non-party 1's ownership transfer registration was made on the non-party 4's non-party 9-6's non-party 1's non-party 9-6's non-party 9-6's non-party 1's non-party 9-6's non-party 9-6's non-party 1's non-party 9-6's non-party 9-6's non-party 1's non-party 9-6's non-party 1's non-party 9-6's non-party 1's non-party 9-6's non-party 2's non-party 9-6's non-party 1's non-party 9-6's non-party 2's non-6's share.

Article 7 of the Aggregate Buildings Act provides that "If there is a sectional owner who does not have the right to use the site, a person who has the right to request removal of the section for exclusive use may request that the sectional owner sell his sectional ownership at the market price." The same Act provides that sectional ownership relation mainly based on one building, but so long as the relationship between sectional owners exists with each building, legal relations regarding the right to use the site between several sectional owners of one building should be interpreted the same as that of the sectional owners of one building. According to the above facts, each building of one apartment is divided into separate parts of each household, and the sectional ownership relation under the Aggregate Buildings Act is established, and the three buildings are combined. Since each apartment of this case is owned by the defendant's 1 and the above sectional owner's right to request sale and purchase of the building site is not the same as that of the defendant's right to request sale and purchase, the plaintiff's right to request sale and purchase of the building site of this case is not the same as that of the defendant's right to request sale and purchase of the building site of this case.

B. Determination on the remainder of the Plaintiff’s assertion

(1) The plaintiff purchased shares of the above 105 building site mainly with his intention to purchase shares of the above 105 site. However, since the right to use the site of this case concurrently exists, the above 202 right to use the site of this case can be deemed as concurrently holding the right to use the site of this case. Thus, the defendant Park Jong-ok cannot exercise his right to request purchase. Thus, in a case where the sectional owners of several buildings constructed on one building or one lot of land and own the building site of this case, each sectional owner has a legitimate right to use all the building site of this case according to the use of the building site of this case regardless of the share ratio of the above 105 site (Supreme Court Decision 93Da60144 delivered on March 14, 195). Thus, it cannot be said that the right to request purchase of the part of exclusive ownership cannot be interpreted as one of the sectional owners' right to use the building site of this case without responding to the size ratio of each building site of this case's right to use the site.

(2) In the case of a multi-story building, unlike the case of a multi-story partitioned building, the Plaintiff asserts that even if the building of the upper floor is a sole owner or co-owner, it is not possible to seek the removal of any section of exclusive ownership among multi-story partitioned buildings, so even if the building of the upper floor is a sole owner or co-owner, it does not constitute a person entitled to seek the removal of the building of this case, which is a multi-story building. However, in order to resolve unreasonable points as alleged by the Plaintiff and reduce social and economic losses arising from the removal of the building, the Plaintiff recognized the above right to claim the removal of the building. The “person entitled to claim the removal of the section of exclusive ownership” that can exercise the right to claim the removal of the section of exclusive ownership under Article 7 of the Multi-story Building Act is sufficient if the person is in a position to exercise the right to claim the removal of the section of exclusive ownership, and whether the execution of the section of exclusive ownership is possible by that person does not have the right to claim the removal.

(3) Although the above housing association is an organization with the name of the association, it is evident that each member of the above housing association was a non-corporate group rather than a cooperative under the Civil Act, since each member of the above housing association was purchased as a separate contribution of all the members of the above housing association for the original purpose of the housing association, and the apartment association was purchased for the original purpose of the housing association, and its decision-making body or execution method was carried out by majority principles, regardless of the organization's membership or withdrawal, etc., and the association itself exists regardless of the organization's change, and the association's method of representative, operation of the general meeting or board of directors, composition of capital, management of property, and other important matters of the association. Thus, it is obvious that the above housing association was a non-corporate group, not a cooperative under the Civil Act but a non-corporate group. Since each member of the above housing association was purchased for the above housing association, the above apartment house was purchased for the original purpose of the housing association, and since the above apartment house was a non-corporate group and owned by all the above members of the housing association.

Therefore, the legal superficies under the customary law is established when the building site belongs to the same owner, but the building or site becomes different owners due to sale and purchase, or any other cause. According to each of the above Gap evidence 2-1 and 2-2 (each judgment), the above Hanil Housing Association owned the same association's property before the transfer of ownership to several buyers, although it is recognized that the above association was an unincorporated association as alleged by the plaintiff, and that the above apartment 96 households newly constructed by the above association belonged to the same association's collective ownership until the transfer of ownership is registered. However, the above fact that the above building site was purchased from the above association and registered under the joint names of the union members including the defendants cannot be readily concluded that the above association owned the above association's collective ownership, and there is no other evidence to acknowledge it. Thus, the plaintiff's above assertion based on the premise that the above building site was jointly owned by the above association is without merit.

(4) Even if the land in this case is owned by the registered titleholder, since the registered titleholder consented to the use of the land at the time of applying for a new construction of the apartment, the Plaintiff, who acquired the right of refining and the right of taking over the above building constructed based on the consent, has the right to use the land in this case. Thus, it is contrary to the principle of good faith to seek the removal of the land in this case. Thus, the Plaintiff’s assertion that the Defendant Park Jong-ok was not in the position to seek the removal of the land in this case. However, the above fact of the Plaintiff’s assertion that the above fact alone cannot be said to contravene the principle of good faith to the position to seek the removal of the section of exclusive ownership. Thus,

C. Determination as to the remainder of Defendant Down-man’s remaining arguments

(1) Even if the claim for purchase on May 12, 1995 and November 21 of the same year was not accepted by Defendant Down, the first exercise of the claim for sale as to No. 105 on August 26, 1994, which was delivered to the Plaintiff on August 26, 1994 (the record was received as of August 24, 1994) and the Plaintiff was not acquired the right to use the site. Thus, the Plaintiff asserted that the Plaintiff was liable to implement the procedure for the transfer of ownership due to sale on August 26, 1994. Thus, it is apparent in the record that the Plaintiff exercised the right to purchase the above No. 105 on the above date. However, as seen above, the Plaintiff was not the owner at the time of the above claim for purchase, and thus, the Plaintiff’s claim for sale against the non-owner is invalid. Therefore, the above Defendant’s assertion is without merit.

(2) In addition, Defendant 5 asserted that the above 105 shares of the above 105 shares of the housing site purchased by the Plaintiff were not the right to use the housing site at the time of sale, and that the above 105 shares of the housing site were only the shares of the housing site owned by the Plaintiff, but the Plaintiff did not acquire the right to use the housing site. However, the right to use the housing site for the section of exclusive ownership refers to the right of sectional owners to own the housing site. On the other hand, the housing site shares, which became the right to use the housing site, can be disposed of only with the section of exclusive ownership, and the disposal of the right to use the housing site is null and void unless there are special circumstances (Article 20 of the Aggregate Buildings Act). In order to become the right to use the housing site against a certain section of exclusive ownership, the owner of the above 10 portion of exclusive ownership should have the right to use the housing site as the right to use the housing site (i.e., the right to use the housing site ownership should be reverted to the same owner).

3. Scope of unjust gains;

Furthermore, according to the above facts as to the scope of unjust enrichment, the defendants are obligated to return to the plaintiff the unjust enrichment equivalent to the rent gained by occupying and using the housing of this case from April 6, 1990 to May 11, 1995, which is the day before the notice of intention to request sale was served, with respect to each apartment of this case, the ownership transfer registration was made in the name of the above right. From April 6, 1990 to May 11, 1995 with respect to each apartment of this case, the defendants are obligated to return to the plaintiff the unjust enrichment equivalent to the rent gained by occupying and using the housing of this case (the use and profit gained from the day of the trade of this case from the day of the effect of the sale of the housing of this case is related to the object delivered under the sales contract. Accordingly, the right to benefit equivalent to the rent belongs to the plaintiff's right to claim the return of unjust enrichment from May 12, 195).

Furthermore, according to the result of appraisal of rent for each apartment of this case with the exception of the portion of the site of this case, the amount equivalent to 640,000 won in total, from April 6, 1990 to April 5, 1991, 720,000 won in total, from April 6, 1991 to April 5, 1992, and 80,000 won in total, from April 6, 1992 to April 6, 1996 to April 5, 1993, 80, 60,000 won in total, from April 6, 1992 to April 5, 1993 to 9, 60,000 won in aggregate, from April 6, 1993 to April 6, 199 to April 9, 196 to 90, respectively.

4. Determination as to the counterclaim part claiming the registration of ownership transfer of the defendant Japn.

As to 202 of this case by the exercise of the right to purchase and sell, the legal relations related to the above 202 were generated as of May 12, 1995. According to the market price appraisal commission with respect to the director of the appraisal corporation and branch office of this court, the market price of the building No. 202 of this case as of November 12 through November 21, 1994 at the time of exercising the right to purchase and sell the above 202 was recognized as of November 21, 1994, which was close to the time of exercising the right to purchase and sell the above 12,00,000, and there is no dispute between the parties. Thus, the market price of 202 of this case is 12,00,000,000 won at the time of the above purchase and sale similar legal relations. Thus, the plaintiff is obligated to transfer the ownership of this case to the defendant due to the sale and purchase registration procedure of this case as of May 12, 2092.

5. Conclusion

Therefore, the plaintiff is obligated to issue an order of 105 won of this case and to pay damages with 25 percent per annum from July 25, 1996 to the full payment date, which is the day following the decision of this case sought by the plaintiff, with 4,000,000 won of this case, and with 80,000 won per annum from April 6, 1995 to the day of completion of the order of 105. The defendant's leap shall be liable to pay the plaintiff with 4,094,684 won of this case and 4,00,000 won of this case's unjust enrichment and 9,00 won of this case's provisional execution of this case's 9,00 won, which is the day following the decision of this case's 199,000 won of this case's 9,000 won of this case's 9,000 won of this case's 9,000 won of this case's 9.

Judges Kim Jong-man