Plaintiff (Attorney Choi Young-dong et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Or-ho et al., Counsel for defendant-appellant)

January 14, 2009

Seoul Central District Court Decision 2007Da337115 Decided July 30, 2008

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant will implement the procedure for registration of cancellation of ownership transfer registration completed by the Seoul Central District Court No. 51984 on October 15, 1993 with respect to the share of each real estate listed in the separate sheet to co-defendant 2 of the court of first instance

1. Basic facts

A. On August 9, 1989, the non-party ○○ workplace association (hereinafter referred to as the "non-party ○○ workplace association") combined with other two workplace-based workplace-based association, and completed the registration of ownership transfer on August 16, 198, the non-party 2 newly built the ○○ apartment on the ground of each of the above real estate (number 1 omitted), the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 2, the non-party 3, the non-party 3, the non-party 3, the non-party 2, the non-party 2, the non-party 2, the non-party 2.

B. Before the registration of ownership preservation for ○○ apartment was completed, the non-party association completed the registration of ownership transfer for each real estate share listed in the separate sheet (hereinafter “instant land share”) on August 3, 1990, as in the case of other members of the court of first instance, on six lots except for the area ratio of each section for exclusive use among the shares in the site sold together with the section for exclusive use by the non-party association.

C. The Seoul Central District Court rendered a decision of compulsory auction as to the share in the instant land by Codefendant 2 of the first instance trial, around 92, 22849, and around 92, around 37742, and the Defendant completed the registration of ownership transfer as Seoul Central District Court No. 51984, Oct. 15, 1993, by winning a successful bid of KRW 14,070,000 with respect to the instant land share in the auction procedure on August 16, 1993.

D. Meanwhile, on June 27, 1997, on the apartment of this case, the registration of ownership preservation was completed in the name of co-defendant 2 of the first instance court on the part of exclusive ownership without registering the right to a site ownership on June 27, 1997. At the request of the non-party creditor, the procedure for compulsory auction at the Seoul Central District Court Decision 98tagi48966 was initiated, and co-defendant 3 of the first instance court completed the registration of ownership transfer after being awarded a successful tender on February

E. After the first instance court’s joint Defendant 3’s application, the auction procedure for the instant apartment was commenced on around 2006, the Seoul Central District Court 21294 (hereinafter “instant voluntary auction”). At the above auction procedure, the building value of the instant apartment was appraised at KRW 302,00,000, and the land value was appraised at KRW 248,000,000, and the minimum auction price of the instant apartment, which is the object of auction, was determined at KRW 302,00,000, and the Plaintiff was awarded a bid of KRW 476,880,000 on February 16, 2007 and completed the registration of ownership transfer on February 26, 2007.

[Evidence] Facts without dispute, Gap evidence Nos. 1 through 4 (including the number of each branch; hereinafter the same shall apply), Eul evidence Nos. 4 and 6, the purport of the whole pleadings

2. Determination as to the cause of action

A. Summary of the plaintiff's assertion

The plaintiff asserts that since the co-defendant 2 of the court of first instance has already acquired the right to use the land of this case before he disposes of the share of this case to the defendant, a compulsory auction (Seoul Central District Court Decision 92 Ma22849, 92 Mata, 3742), which was conducted with respect to the share of this case where it was impossible to separately dispose of the apartment of this case pursuant to Article 20 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act"), shall be null and void, and therefore, the registration of transfer of ownership in the name of the defendant shall be cancelled as the registration of invalidity of transfer of ownership, which was completed with respect to the share of this case due to the successful bid in the above auction procedure. The plaintiff who acquired the apartment of this case from co-defendant 2 of the court of first instance through Co-defendant 3 of the court of first instance to preserve the right to claim the transfer registration of ownership of the share of this case to the defendant in lieu of the co-defendant 2 and 3 of the

B. Determination

(1) Whether the right to use the site has been acquired

The time when a sectional owner of an aggregate building acquires the right to use a site for a section of exclusive ownership shall coincide with the time when an aggregate building is established. Whether a section of exclusive ownership is a section of exclusive ownership or a section of common use shall, in principle, be determined as of the time when the whole building is completed and registered as a sectional ownership in the building ledger of the building concerned (see Supreme Court Decision 9Da1345 delivered on September 17, 199). However, the time of registration of an aggregate building in the building ledger shall not be absolute as of the time of registration, and if a building is newly constructed and sold as an aggregate building, the right to use a site for the section of exclusive ownership has been

In the instant case, comprehensively taking account of the overall purport of the arguments in the evidence Nos. 5 through 8, and No. 4, the following facts are as follows: ① The non-party association was established as an aggregate building on Nov. 1, 1991 with the approval of the housing construction project plan for the ○ apartment; ② the association commenced construction on or around Mar. 10, 1990 and completed construction of the ○ apartment and received a provisional use approval on Nov. 1, 1991; ③ the members including the co-defendant 2 of the first instance court from around the time to Apr. 30, 192 including the co-defendant 1 can recognize the fact that the ○ apartment moved into the ○ apartment. According to the above facts, the ○ apartment was established as an aggregate building on or around Nov. 1, 1991 with the approval of provisional use approval; accordingly, prior to the commencement of compulsory sale for the instant land or the Defendant’s successful bid, the Plaintiff acquired the right to use the instant apartment site through the first instance trial.

(2) The validity of the auction on the share of the instant land

Article 20 (1) of the Aggregate Buildings Act provides that "the right of a sectional owner to use site shall be subject to the disposition of his section of exclusive ownership," and Paragraph (2) of Article 20 provides that "the sectional owner shall not dispose of the right to use site separately from his section of exclusive ownership: Provided, That this shall not apply to the case where the sectional owner otherwise stipulated by the regulations." Thus, unless there is any evidence to prove the existence of the regulations on the separate disposal of the portion of land of this case, the compulsory auction procedure of this case as to the portion of land of this case shall be null and void, and the registration of the invalidation of the registration of the ownership transfer under the defendant's name, which was completed as a result of the successful bid in the above auction procedure, shall also be the registration.

(3) Judgment on the defendant's defense

In this regard, the defendant is a bona fide third party under Article 20 (3) of the Aggregate Buildings Act, who has lawfully acquired the share of the land of this case.

However, Article 20 (3) of the Aggregate Buildings Act provides that "the prohibition of separate disposition shall not be asserted against a third party who has acquired a real right in good faith unless the purport of the prohibition is registered." Thus, the good faith at this time means not "the failure to know that the right to use the site has been established" in the interpretation of the language and text, but "the failure to know the existence of the restriction of separate disposition".

However, according to the evidence Nos. 2 and 3, it can be acknowledged that the purport of the prohibition of separate disposal on the registry is not stated with respect to the land share in this case, and in addition, it is reasonable to deem that the defendant who was awarded the bid of the land share in this case in the auction procedure by the court, recognized it as a legitimate object of auction and responded to auction. Therefore, considering all the above circumstances, the defendant may oppose against the plaintiff, etc. who acquired the ownership of the land share in this case, a real right without knowing the restriction of the prohibition of separate disposal, and therefore, the defendant's defense is reasonable.

(4) In light of the above legal principles, the court below held that the defendant's share in the land of this case was used as the site of apartment since the apartment was constructed on the real estate stated in the attached list after confirming a copy of the register, a statement of auction articles, a report on the investigation of the current status, an appraisal statement, etc. which the auction participants could have perused at the time of the above auction procedure, and it cannot be presumed that the defendant knew that the share in the land of

(4) Nature of the right to use site acquired by the Plaintiff

On the other hand, the plaintiff asserts that the apartment of this case was awarded a successful bid and the share in the land of this case is naturally acquired.

The auction procedure was initiated based on the right to collateral security established only with respect to the section for exclusive use prior to the completion of the registration of ownership transfer for the section for exclusive use and the registration of ownership transfer for the section for exclusive use. Even if the execution court conducted the auction procedure without reflecting the appraised value of the share in the site in issuing the bidding order for the section for a divided building, barring special circumstances, such as the existence of regulations allowing the separate disposal of the right to use the site for the section for exclusive use, the successful bidder shall also acquire the section for exclusive use, which is a accessory or accessory right, together with the share in the site, according to the successful bid (see Supreme Court Decision 2001Da22604 delivered on September 4, 201). This legal principle is reasonable if the owner of the section for exclusive use acquires the share in the site after the registration of the section for exclusive use, but it cannot be applied if the share in the site was legally transferred to a third party and the interested parties were registered after the share in the site has occurred, and it cannot be applied to the successful bidder in this case.

On the other hand, considering that the right to use site under the Act on the Ownership of Aggregate Buildings does not necessarily mean only the right to use site, but also includes superficies, lease on a deposit basis, and lease, the right to use site acquired by the plaintiff, who is the successful bidder of the apartment in this case, is the right

3. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List omitted]

Judges Lee Sung-chul (Presiding Judge)