Nature of the obligation to return unjust enrichment by co-owners

Unless there are special circumstances, co-owners of a building possess or use the site part for the ownership of the building, and gain profits equivalent to the rent for the possession part and inflict damages equivalent to the same amount on the owner of the building. In such cases, the obligation to return unjust enrichment is an indivisible obligation as repayment of indivisible profits.

Articles 741 and 411 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

1.4 1 others

Kim Kim Hong

Daejeon District Court Decision 90Da8064, 92Gahap2381 delivered on October 16, 1992

1. All of the appeals by the defendant (appointed party) and the designated parties in the annexed sheet, Kim Jong-soo, and the same Kim Jong-soo are dismissed.

2. The costs of appeal shall be borne by the defendant (appointed parties) and the aforementioned designated parties.

Defendant (Appointed Party) and Appointers, and the same Kim Jong-man shall pay to each of the plaintiffs an amount of money of KRW 7,192,403 and an amount of money with 25 percent per annum from the day following the delivery of an application for modification to the lawsuit (as of August 21, 1992) to the full payment date.

The original judgment shall be revoked.

The plaintiffs' claims are dismissed.

1. Occurrence of a claim for return of unjust enrichment;

A. The following facts are not disputed between the parties, or are acknowledged by Gap evidence 1, Gap evidence 2 (as stated in Gap evidence 2-1, Eul evidence 2-2), Eul evidence 3 (as stated in Eul evidence 3 (as stated in a successful bid decision), Eul evidence 4 (as stated in the judgment), the result of on-site inspection by the court below, and all purport of arguments, and there is no counter-proof otherwise.

(1) The Daejeon High-gu Daejeon District Court Decision 88Ma9572, Jun. 30, 1989 (hereinafter referred to as the site in this case) is the land jointly owned by the plaintiffs, who completed the registration of transfer of ownership on August 17, 1988, under the joint bid of the plaintiffs with the Daejeon District Court 88 Magi9572, Jun. 30, 1989.

(2) On February 8, 1982, the Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 2 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co-Defendant 1 Co., Ltd.,

(3) The Defendant (Appointed Party) and the person who was selected to enter in the list of the separate types of machines, the same Kim Jong-soo (hereinafter, Defendant (Appointed Party, etc.), and the same Kim Jong-soo (hereinafter, Defendant, etc.) respectively take over specific parts of the instant building (hereinafter, the instant building section) from the above general market of Taepyeong-si, and accordingly completed the registration of transfer of ownership in accordance with this, the registration of transfer of ownership is completed with three co-ownership as to the share of the 198.35/1650.48 shares among the 1st floor corresponding to each area, 52.07/1650.48 shares among the 2nd floor, and share of the 109.1/1838.31 shares in the underground floor.

B. Thus, the part of the building of this case, which completed the above transfer registration of the above shares in the three cases including the defendant (Appointed party) is presumed to be jointly owned by the defendant (Appointed party). Accordingly, the defendant (Appointed party) et al. acquired the building of this case from August 18, 1989, when the plaintiffs occupied the building of this case to own the building of this case from August 18, 1989, which was sought by the plaintiffs, and used the building of this case for the possession of the building of this case, the profits equivalent to the rent for the possession of the building of this case and the damages equivalent to the same amount were incurred to the plaintiffs. Therefore, the obligation to return the unjust enrichment to the plaintiffs is an indivisible obligation as repayment of indivisible profits.

C. The defendant (appointed party) asserted that they cannot respond to the plaintiffs' request because they did not occupy the building portion until now since they lease to the non-party 1 and 6 other parties without ordering the above purchase of the building portion of this case. However, even if the owner of a building on the ground owned by others does not occupy the building or its site actually, they should be viewed as occupying the building site even if they do not occupy the building or its site on the ground owned by others. Thus, the above argument is groundless without need to further examine.

2. Scope of return;

Furthermore, we examine the amount that the defendant (appointed party) should return to the plaintiffs.

According to the results of the appraisal of the rent for the occupation of the land in this case by the defendant (appointed party) from August 18, 1989 to December 31, 1989, as a result of the said appraisal of the rent for the occupation of the land in this case by the court below, the rent for the land in this case by the defendant (appointed party) can be recognized as having been added up to KRW 1,427,151 from August 18, 1989 to December 31, 1999, KRW 5,253,464 from the next day to January 31, 1990, and KRW 511,788 from the next day to January 31, 1991, which the plaintiffs sought as KRW 511,78.

3. Conclusion

Therefore, Defendant (Appointed Party), etc. is obligated to pay damages for delay at the rate of 25% per annum from August 30 of the same year to each full payment date under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, etc., on the record that the service day of the written application for modification of the entries in the claim sought by the Plaintiffs is the day following the date of the above unjust enrichment. (The Defendant (Appointed Party) is the day following the service day of the written application for modification of the entries in the claim sought by the Plaintiffs after the date of the above unjust enrichment.

Therefore, the plaintiffs' claims in this case shall be accepted on the grounds of their reasoning, and the original judgment with the same conclusion is just and the appeal by the defendant (appointed party) is dismissed on the grounds that all of them are without merit.

Judges Lee E-hoon (Presiding Judge)