Plaintiff (Attorney Jeong-hwan et al., Counsel for plaintiff-appellant)

Defendant 1 and four others (Attorney Park Jae-young, Counsel for the defendant-appellant)

April 17, 2013

Daejeon District Court Decision 201Gadan132 Decided June 28, 2012

1.The judgment of the first instance shall be modified as follows:

A. On the Plaintiff (Counterclaim Defendant),

1) From September 21, 201 to September 21, 2011, Defendant (Counterclaim Plaintiff) 1 paid an amount equivalent to KRW 45,540 per month from the date of completion of delivery of the land section 293 square meters in the attached Table No. 44, 49, 50, 51, 52, 54, 55, 14, 14, 15, 16, 45, and 44 of the attached Table No. 1 among the land listed in paragraph (1) of the attached Table No. 44, 49, 540 per month;

2) From September 21, 2011 to September 21, 2011, Defendant (Counterclaim Plaintiff) 2 paid an amount calculated by applying the ratio of KRW 72,960 per month to the date of completing delivery of the portion of the site 482 square meters in the ship, which is successively connected with each point of KRW 18, 19, 20, 21, 22, 39, 40, 41, 42, 42, 43, 44, 45, 17, and 18, among the land listed in the attached Table No. 1, listed in the attached Table No. 1, 201;

3) From September 21, 201, Defendant (Counterclaim) 3 paid the amount of money, among the lands listed in paragraph (1) of the attached Table from 458,952 won and September 21, 201, the amount of money, among the lands listed in the attached Table No. 38, 37, 36, 35, 34, 46, 47, 49, 44, 43, 42, 41, 40, 39, 23, 23, and 38 of the land indicated in the attached Table No. 421 square meters and the same map No. 47,48, 8, 9, 53, 52, 51, 50, 49, and 47, the portion of the land listed in the attached Table No. 38, 52, 10, 11, 12, 13, 45, 54,7

4) From September 21, 201, the Defendant (Counterclaim) 4, among the lands listed in the attached Table No. 1, 2, 3, 4, 5, 6, 7, 34, 35, 36, 37, 38, 24, 25, 25, and 1 of the attached Table No. 1, among the lands listed in the attached Table No. 1 from September 21, 201, the Defendant (Counterclaim Plaintiff) paid an amount of money in proportion to KRW 86,30,00 per month from the date of completion of delivery of the portion of the land listed in the attached Table No. 1, 34, 36, 37, 38, 24, 25, and 34 of the same Map;

5) Defendant (Counterclaim Plaintiff) 5 shall pay 532,454 won and 67,770 won per month from September 21, 201 to September 21, 2011 at the rate of 57,770 won per month.

B. All remaining claims filed by the Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Plaintiff) are dismissed.

2. On the counterclaim that was brought at the trial of the first instance, the Plaintiff (Counterclaim Defendant) may:

A. Of the land listed in paragraph (1) of the attached Table No. 1 from the Defendant (Counterclaim Plaintiff) 1, the amount of KRW 16,84,00,00 shall be paid to the Defendant (Counterclaim Plaintiff) 1 simultaneously with each of the items listed in the attached Table No. 115, 116, 117, 49, 50, 118, 118, 119, 119, and 115, which are linked in sequence with the items listed in the attached Table No. 120, 121, 122, 123, 124, 125, and 120, which are collectively connected with the items listed in the attached Table No. 1 of the same Table No. 1;

B. Of the land listed in paragraph (1) of the attached Table 1 from the Defendant (Counterclaim Plaintiff) 2, the amount of KRW 16,272,00,00 shall be paid to the Defendant (Counterclaim Plaintiff) 2 at the same time as the amount of KRW 16,272,00,00,00,00,00,00,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

다. 피고(반소원고) 3으로부터 별지 목록 1항 기재 토지 중, 별지 도면 표시 80, 81, 82, 83, 80의 각 점을 순차로 연결한 선내 (ㅍ)부분 하우스 32㎡와 같은 도면 표시 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 84의 각 점을 순찰로 연결한 선내 (ㅎ)부분 주택 54㎡, 같은 도면 표시 98, 99, 100, 101, 98의 각 점을 순차로 연결한 선내 (ㄱ1)부분 주택 31㎡를 각 인도받음과 동시에 피고(반소원고) 3에게 15,104,000원을 지급하고,

라. 피고(반소원고) 4로부터 별지 목록 1항 기재 토지 중, 별지 도면 표시 56, 57, 58, 59, 56의 각 점을 순차로 연결한 선내 (ㅇ)부분 하우스 17㎡, 같은 도면 표시 60, 61, 62, 63, 64, 65, 66, 67, 60의 각 점을 순차로 연결한 선내 (ㅈ)부분 주택 63㎡, 같은 도면 표시 68, 69, 70, 71, 68의 각 점을 순차로 연결한 선내 (ㅊ)부분 축사 7㎡, 같은 도면 표시 72, 73, 74, 75, 72의 각 점을 순차로 연결한 선내 (ㅋ)부분 창고 35㎡, 같은 도면 표시 76, 77, 78, 79, 76의 각 점을 순차로 연결한 선내 (ㅌ)부분 하우스 21㎡를 각 인도받음과 동시에 피고(반소원고) 4에게 15,660,000원을 지급하고,

E. The Defendant (Counterclaim Plaintiff) paid KRW 15,067,00 to the Defendant (Counterclaim Plaintiff) 5 at the same time with each point of (7), 130, 131, 132, 133, 134, 135, 136, 137, and 130 of the attached table No. 126, 127, 128, 129, and 126, among the land listed in the attached table No. 2 of the attached table No. 5, which are linked in sequence with each point of (7), 28m2, 131, 132, 133, 134, 135, 136, 137, and 130 square meters,

3. Of the costs of lawsuit, the portion arising from the principal lawsuit is assessed against the Plaintiff (Counterclaim Defendant) and the remainder is assessed against the Plaintiff (Counterclaim Defendant). The remainder is assessed against the Plaintiff (Counterclaim Defendant).

4. Paragraphs 1(a) and 2 of this Article may be provisionally executed.

1. The purport of the claim (hereinafter referred to as “Plaintiff-Counterclaim Defendant”) and the Defendant-Counterclaim Plaintiff are only indicated as “Plaintiff” and “Defendant-Counterclaim Plaintiff”).

(a) Main claim;

The Plaintiff

1) Of the land listed in the attached list No. 1, Defendant 1 removed, among the land listed in the attached list No. 1, the items of the attached list No. 115, 116, 117, 49, 50, 118, 119, 115, among the items of the attached list No. 1, and the items of the attached list No. 120, 121, 122, 123, 124, 125, 120, and 120; Defendant 1, among the items of the land listed in the attached list No. 1 of the attached list No. 444, 49, 50, 51, 52, 54, 55, 14, 15, 16, 45, and 120; Defendant 1, who successively connected each item of the above drawings No. 120, 120, 124,200

2) Defendant 2, among the lands listed in the separate sheet No. 1, removed each of the above points in the separate sheet No. 102, 103, 104, 105, 106, 107, 108, 102, among the lands listed in the separate sheet No. 1, Defendant 2, in sequence, connected with each point of 61 square meters in the ship (b) section No. 61 square meters in the separate sheet No. 109, 110, 111, 112, 113, 114, 109, and each of the above points of 63 square meters in the ship (hereinafter the above warehouse and housing collectively referred to as the "two buildings of this case"), and removed the above portion of 18,19, 20, 221, 39, 40, 42, 43, 44, 45, 17, and 109.

3) 피고 3은 별지 목록 1항 기재 토지 중, 별지 도면 표시 80, 81, 82, 83, 80의 각 점을 순차로 연결한 선내 (ㅍ)부분 하우스 32㎡와 같은 도면 표시 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 84의 각 점을 순찰로 연결한 선내 (ㅎ)부분 주택 54㎡, 같은 도면 표시 98, 99, 100, 101, 98의 각 점을 순차로 연결한 선내 (ㄱ1)부분 주택 31㎡(이하 위 하우스 및 각 주택을 합하여 ‘이 사건 3건물들’이라 한다)를 각 철거하고, 같은 도면 표시 38, 37, 36, 35, 34, 46, 47, 49, 44, 43, 42, 41, 40, 39, 23, 38의 각 점을 순차로 연결한 선내 (ㄴ)부분 대지 421㎡, 같은 도면 표시 47, 48, 8, 9, 53, 52, 51, 50, 49, 47의 각 점을 순차로 연결한 선내 (ㅂ)부분 도로 34㎡, 같은 도면 표시 52, 53, 10, 11, 12, 13, 14, 55, 54, 52의 각 점을 순차로 연결한 선내 (ㅅ)부분 도로 36㎡{이하 위 (ㄴ), (ㅂ), (ㅅ)부분을 합하여 ‘이 사건 3토지’라 한다}를 각 인도하고, 806,230원 및 2011. 9. 21.부터 위 철거 및 인도완료일까지 월 58,440원의 비율에 의한 금원을 지급하고,

4) 피고 4는 별지 목록 1항 기재 토지 중, 별지 도면 표시 56, 57, 58, 59, 56의 각 점을 순차로 연결한 선내 (ㅇ)부분 하우스 17㎡, 같은 도면 표시 60, 61, 62, 63, 64, 65, 66, 67, 60의 각 점을 순차로 연결한 선내 (ㅈ)부분 주택 63㎡, 같은 도면 표시 68, 69, 70, 71, 68의 각 점을 순차로 연결한 선내 (ㅊ)부분 축사 7㎡, 같은 도면 표시 72, 73, 74, 75, 72의 각 점을 순차로 연결한 선내 (ㅋ)부분 창고 35㎡, 같은 도면 표시 76, 77, 78, 79, 76의 각 점을 순차로 연결한 선내 (ㅌ)부분 하우스 21㎡(이하 위 주택, 축사, 창고, 각 하우스를 합하여 ‘이 사건 4건물들’이라 한다)를 각 철거하고, 같은 도면 표시 1, 2, 3, 4, 5, 6, 7, 34, 35, 36, 37, 38, 24, 25, 1의 각 점을 순차로 연결한 선내 (ㄱ)부분 대지 635㎡와 같은 도면 표시 34, 7, 48, 47, 46, 34의 각 점을 순차로 연결한 선내 (ㅁ)부분 도로 40㎡(이하 위 (ㄱ), (ㅁ)부분을 합하여 ‘이 사건 4토지’라 한다)를 각 인도하고, 1,192,220원 및 2011. 9. 21.부터 위 철거 및 인도완료일까지 월 86,300원의 비율에 의한 금원을 지급하고,

5) Defendant 5, among the lands listed in the separate sheet No. 2 (hereinafter “instant 5”) attached Table No. 126, 127, 128, 129, and 126, Defendant 5 removed each of the items listed in the separate sheet No. 126, 127, 128, 129, and 126, (f) part of warehouse No. 130, 131, 132, 133, 134, 135, 136, 137, 137, and 130, connected with each item of (f) warehouse No. 130, 136, and 60,000 won, from September 21, 201 to September 67, 707.

(a) Counterclaim;

The defendant filed a counterclaim in accordance with the disposition No. 2 (the defendant raised a counterclaim in the first instance).

2. Purport of appeal

The part of the judgment of the court of first instance against the defendants shall be revoked, and each of the plaintiff's claims against the defendants corresponding to the revocation part shall be dismissed.

1. Basic facts

A. Each of the lands listed in the separate sheet (hereinafter “each of the lands of this case”) was owned by Nonparty 1, the father of the Plaintiff, and on January 19, 1994, the registration of ownership transfer was completed on July 7, 1985 by reason of donation in accordance with the Act on Special Measures for the Registration, etc. of Ownership of Real Estate (No. 4502).

B. Defendant 1 occupied and used the instant land 1; Defendant 2 occupied and used the instant land 2; Defendant 3 occupied and used the instant land 3; Defendant 4 occupied and used the instant land 4 while occupying and using the instant land 4; and Defendant 5 owned and used the instant five buildings while occupying and using the instant land 5.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1-1, 2, and Gap evidence 3, the result of on-site inspection by the court of first instance, the result of surveying and appraisal by the court of first instance for the Korea Cadastral Corporation, the purport of the whole pleadings

2. Determination on the main claim

A. Determination as to removal of the Plaintiff’s respective buildings and request for the delivery of land against the Defendants

1) The parties' assertion

Based on the ownership of each of the instant lands, the Plaintiff removed each of the instant buildings owned by the Defendants among the instant buildings 1 through 5 (hereinafter “each of the instant buildings”) and sought delivery of each of the instant lands. The Defendants asserted that the Plaintiff could not comply with the Plaintiff’s request for the removal of the said buildings and the request for delivery of the said land, on the premise that a lease relationship for the purpose of owning a building with respect to each of the instant lands among each of the instant lands was established between the Plaintiff and the Plaintiff on the premise that a lease relationship for the purpose of owning a building with respect to each of the instant lands was established.

2) Determination

A) In order to exercise the right to demand a ground object under Article 643 of the Civil Act, the existence of a land lease agreement aimed at owning the ground object is recognized. As such, it is necessary to examine whether a lease agreement exists between the Plaintiff and the Defendants on each of the instant lands for the purpose of owning a building with respect to each of the instant lands.

Therefore, comprehensively taking account of the following facts: (a) Non-Party 2’s testimony of Non-Party 3, Non-Party 1’s witness of the first instance trial; (b) the result of on-site inspection by the court of the first instance; (c) Non-Party 1, his father acquired ownership of each of the instant lands on May 4, 1948; (d) the above houses were destroyed at the time of the Korean War, and had returned to the village from 1952 to 1955; and (d) the Defendants were able to use each of the instant lands on each of the instant lands; and (e) the Plaintiff and the Defendants were to have been able to pay each of the instant lands every year from Non-Party 2’s owners of the instant lands to the end of 1953; and (e) before the end of 1998, Defendant 1 owned each of the instant lands on each of the instant lands owned by the Defendants from Non-Party 1 and the owners of each of the instant lands to the end of 195 years before the instant Building.

According to the above facts, the whole owners of each building of this case, among each of the buildings of this case, occupied and used each of the lands of this case for the ownership of each of the buildings of this case, and paid land usage fees to the non-party 1, thereby entering into a lease contract not setting a period for each of the lands of this case with the non-party 1. The plaintiff continued to pay the land usage fees to the defendants, who are the present owners of each building of this case, through the non-party 4 and the non-party 2, and confirmed the succession of the defendants' right to lease of land. Thus, the lease contract which did not set the period for each of the lands of this case was established implicitly among the plaintiff and the defendants.

As to this, the Plaintiff asserted that, even if an implied lease agreement is established, the Plaintiff did not obtain the consent of the Plaintiff, the landowner, at the time of the purchase of each of the pertinent buildings from the former owners of each of the instant buildings, as to the acquisition of the right to lease of each of the pertinent land incidental thereto, and thus, the Defendants’ right to purchase ground property premised on the existence of a legitimate right to lease cannot be acknowledged. However, even if the Plaintiff did not expressly consent to the Defendants’ right to lease of each of the instant land, the Plaintiff implicitly ratified the succession of the Defendants’ right to lease of land. Therefore, the Plaintiff’s above assertion is rejected.

B) Meanwhile, the facts that each of the buildings of this case owned by the Defendants exist on each of the land of this case are as seen earlier, and according to the statements in Gap evidence Nos. 4-1 through 5, the plaintiff sent a written notification demanding the Defendants to deliver each of the relevant land in possession to the Defendants on July 20, 2010 by content-certified mail. The fact that the written report dated Oct. 19, 201, stating that the Defendants demanded the Plaintiff to purchase each of the buildings of this case, was delivered to the Plaintiff on the same day.

C) Therefore, on October 19, 201, between the Plaintiff and the Defendants, the sales contract for each of the instant buildings owned by the Defendants was established. Accordingly, the Plaintiff cannot claim against the Defendants for the removal of each of the instant buildings owned and the delivery of each of the instant land, and thus, the Plaintiff’s claim against the Defendants for this part against the Defendants is without merit.

B. Determination as to the plaintiff's claim for return of unjust enrichment against the defendants

1) Return of unjust enrichment

Since January 19, 194, each of the instant lands was owned by the Plaintiff; since the Defendants newly constructed or acquired each of the instant buildings, each of the instant lands was used as a site necessary for the location and use of the building; the Plaintiff and the Defendants concluded a lease agreement with no fixed period of time on each of the instant lands; and on July 20, 2010, the Plaintiff sent to the Defendants a written notification demanding the delivery of each of the instant lands by content-certified mail.

According to the above facts, the above lease agreement between the plaintiff and the defendants shall be deemed terminated on January 20, 201 after six months from the date on which the above notice was served to the defendants pursuant to Article 635(2)1 of the Civil Act. Accordingly, from January 21, 2011 to January 20, 2011, the defendants obtain profit from the use of each of the land of this case among each of the buildings of this case through the ownership of each of the buildings of this case, and thereby, cause damage to the plaintiff equivalent to the same amount.

Therefore, from January 21, 201, the following day after the termination of the above lease agreement, the Defendants are obligated to return unjust enrichment equivalent to the profits from the use of each of the pertinent land among each of the instant lands from January 21, 201 to the date of delivering each of the instant lands possessed by the Plaintiff (see Supreme Court Decision 95Da15728, Mar. 14, 1997).

Meanwhile, under the premise that the lease contract for each land of this case was not concluded between the Defendants and the Defendants, the Plaintiff sought the return of unjust enrichment equivalent to the rent from July 20, 201 to January 20, 201. However, as seen earlier, the lease contract for each land of this case between the Plaintiff and the Defendants was concluded and maintained before July 20, 2010, and the termination of January 20, 2011 by the Plaintiff’s notice of termination was completed. However, even if the Plaintiff sought payment of the overdue rent against the Defendants during the above period, it cannot be claimed for the return of unjust enrichment equivalent to the rent under the premise of the Defendants’ unauthorized possession. Thus, the Plaintiff’s claim for this part is without merit.

2) Amount of unjust enrichment

Furthermore, we examine the amount of unjust enrichment to be returned to the Plaintiff by the Defendants.

통상의 경우 부동산의 점유·사용으로 인한 이득액은 그 부동산의 차임 상당액이라고 할 것인데, 제1심 법원의 주식회사 대한감정평가법인에 대한 감정촉탁결과 및 변론 전체의 취지를 종합하면, 이 사건 1토지의 2011. 1. 21.부터 2011. 9. 20.까지의 임료는 357,820원{= 2011. 1. 21.부터 2011. 7. 19.까지의 임료 263,480원(= 534,280원 × 180/365, 원 미만은 버림, 이하 같다) + 2011. 7. 20.부터 2011. 9. 20까지의 임료 94,340원}이고, 2011. 9. 20. 무렵의 월 임료는 45,540원인 사실, 이 사건 2토지의 2011. 1. 21.부터 2011. 9. 20.까지의 임료는 572,911원{= 2011. 1. 21.부터 2011. 7. 19.까지의 임료 421,791원(= 855,300원 × 180/365) + 2011. 7. 20.부터 2011. 9. 20.까지의 임료 151,120원}이고, 2011. 9. 20. 무렵의 월 임료는 72,960원인 사실, 이 사건 3토지의 2011. 1. 21.부터 2011. 9. 20.까지의 임료는 458,952원{= 2011. 1. 21.부터 2011. 7. 19.까지의 임료 337,892원(= 685,170원 × 180/365) + 2011. 7. 20.부터 2011. 9. 20.까지의 임료 121,060원}이고, 2011. 9. 20. 무렵의 월 임료는 58,440원인 사실, 이 사건 4토지의 2011. 1. 21.부터 2011. 9. 20.까지의 임료는 678,548원{= 2011. 1. 21.부터 2011. 7. 19.까지의 임료 499,788원(= 1,013,460원 × 180/365) + 2011. 7. 20.부터 2011. 9. 20.까지의 임료 178,760원}이고, 2011. 9. 20. 무렵의 월 임료는 86,300원인 사실, 이 사건 5토지의 2011. 1. 21.부터 2011. 9. 20.까지의 임료는 532,454원{= 2011. 1. 21.부터 2011. 7. 19.까지의 임료 392,074원(= 795,040원 × 180/365) + 2011. 7. 20.부터 2011. 9. 20.까지의 임료 140,380원}이고, 2011. 9. 20. 무렵의 월 임료는 67,770원인 사실을 인정할 수 있고, 이 사건 각 토지의 2011. 9. 21. 이후의 월 임료도 2011. 9. 20. 무렵의 월 임료와 같은 금액일 것으로 추인된다.

Therefore, Defendant 1’s return of unjust enrichment to the Plaintiff shall be 357,820 won and 45,540 won per month from September 21, 201 to September 21, 2011; Defendant 2 shall be 572,91 won and 72,960 won per month from September 21, 201 to September 21, 201; Defendant 3 shall be 458,952 won and 58,440 won per month from September 21, 201 to September 21, 2011 to September 21, 201; Defendant 4 shall be 678,548 won and 86,300 won per month from September 21, 201 to September 21, 201 to April 305, 205; and Defendant 2 shall be 75,51,571.

3. Judgment on the counterclaim claim

1) As seen earlier, with respect to the instant building No. 1 between the Plaintiff and Defendant 1 on October 19, 201 and the instant building No. 2 between the Plaintiff and Defendant 2, as to the instant building No. 3 between the Plaintiff and Defendant 3, each sales contract between the Plaintiff and Defendant 4 on the instant building No. 4 was concluded between the Plaintiff and Defendant 5, and as to the instant building No. 5 between the Plaintiff and Defendant 5, the Plaintiff is obligated to pay the purchase price for each of the instant buildings owned by the Defendants.

2) 나아가 원고가 피고들에게 각 지급하여야 할 매매대금의 액수에 관하여 보건대, 감정인 소외 5의 시가감정결과 및 변론 전체의 취지를 종합하면, 2011. 7. 28. 기준으로 별지 목록 제1항 기재 토지 중 별지 도면 표시 115, 116, 117, 49, 50, 118, 119, 115의 각 점을 순차로 연결한 선내 (ㄹ1)부분 주택(피고 1 소유)의 시가가 16,884,000원인 사실, 별지 목록 제1항 기재 토지 중 별지 도면 표시 109, 110, 111, 112, 113, 114, 109의 각 점을 순차로 연결한 선내 (ㄷ1)부분 주택(피고 2 소유)의 시가가 16,272,000원인 사실, 별지 목록 제1항 기재 토지 중 별지 도면 표시 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 84의 각 점을 순찰로 연결한 선내 (ㅎ)부분 주택(피고 3 소유)의 시가가 15,104,000원인 사실, 별지 목록 제1항 기재 토지 중 별지 도면 표시 60, 61, 62, 63, 64, 65, 66, 67, 60의 각 점을 순차로 연결한 선내 (ㅈ)부분 주택(피고 4 소유)의 시가가 15,660,000원인 사실, 별지 목록 제2항 기재 토지 중 별지 도면 표시 130, 131, 132, 133, 134, 135, 136, 137, 130의 각 점을 순차로 연결한 선내 (ㅅ1)부분 주택(피고 5 소유)의 시가가 15,067,000원인 사실을 각 인정할 수 있고, 매매계약이 성립한 2011. 10. 19. 위 각 건물의 시가도 위와 같은 금액일 것으로 추인된다.

3) Accordingly, the Plaintiff, as sought by the Defendants, is obligated to deliver the instant building from Defendant 1 to Defendant 1, simultaneously with the delivery of KRW 16,84,00 from Defendant 2, KRW 16,272,00 from Defendant 2, and at the same time to deliver the instant building from Defendant 3, KRW 15,104,00 from Defendant 3, and KRW 15,660,00 from Defendant 4, and KRW 15,60,000 from Defendant 4, and KRW 15,67,00 from Defendant 5, as well as to deliver the instant building from Defendant 5 to Defendant 5.

4. Conclusion

Therefore, each of the plaintiff's claims against the defendants against the defendants are accepted within the extent of the above recognition, and each of the plaintiff's claims against the defendants against the defendants are dismissed as they are without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the defendant's appeal shall be accepted, and the judgment of the court of first instance shall be modified as above, and the defendant's counterclaim raised in the court of first instance shall be accepted as it is with merit, and it shall

[Attachment]

Judges Choi Jin-jin (Presiding Judge)