Plaintiff (Law Firm Lee & Lee, Attorneys Kim Yong-nam, Counsel for plaintiff-appellant)

Defendant 1 (Defendant in the judgment of the Supreme Court) and one other (Law Firm Corpex, Attorneys Kim Jong-ju, Counsel for the defendant-appellant)

November 12, 2009

1. All of the plaintiff's claims are dismissed.

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

With respect to each real estate listed in the separate sheet No. 1, the defendant Korea Land Trust Co., Ltd. shall perform the procedure for registration of cancellation of ownership transfer registration completed on September 4, 2003 by the receipt of No. 87888 on September 4, 2003 to the defendant 1, and the defendant 1 shall implement the procedure for registration of transfer of ownership based on the acquisition of the portion of exclusive ownership listed in the separate sheet No. 2 on May 8, 20

1. Basic facts

A. On December 14, 2001, Defendant 1 purchased Samsung-dong (number 1 omitted), (number 2 omitted), and (number 2 omitted (hereinafter “instant land”) land from Sejong-gu Co., Ltd., Ltd., and completed the registration of ownership transfer on March 12, 2002.

B. Defendant 1 entered into a construction contract with a quasi-construction company (hereinafter “quasi-construction”) on April 26, 2002 to newly construct the apartment of the second and the 12th floor above ground (hereinafter “the apartment of this case”) on the instant land, and quasi-construction commenced the construction of the instant apartment around May 2002, and Defendant 1 sold the instant apartment from April 2002.

C. On September 4, 2003, Defendant 1 entered into a real estate security trust agreement with Defendant Korea Land Trust Co., Ltd. (hereinafter “Defendant Korea Land Trust”) on the instant land with the priority beneficiary Co., Ltd. (hereinafter “Defendant Korea Land Trust”), Defendant 1, and Nonparty 1. On the same day, Defendant Korea Land Trust entered into a real estate security trust agreement with Defendant Korea Land Trust (hereinafter “instant trust registration”) on the grounds of trust. On September 5, 2003, Defendant 1 provided a loan with KRW 2.5 billion on September 5, 2004 at the expiration of the credit period (hereinafter “instant loan”).

D. On July 8, 2004, Pudong Mutual Savings Bank filed an application for provisional attachment against Defendant 1 with the Seoul Central District Court No. 2004Kadan90355, Jul. 8, 2004 for the instant apartment on the ground that the instant loan was the preserved claim, and on July 26, 2004 according to the provisional attachment order issued by the above court, Defendant 1 filed an application for provisional attachment of the instant apartment on July 26, 2004, for the provisional attachment registration of the instant apartment on behalf of Defendant 1, and completed the provisional attachment registration of KRW 3,250,000,00 with the maximum debt amount, and on November 30, 2004, filed an application for provisional attachment of the real estate with the Seoul Central District Court No. 2004Ma46066, Nov

E. On June 28, 2006, the Plaintiff acquired the ownership by winning a successful bid among the instant apartment in the voluntary auction procedure set forth in the foregoing sub-paragraph (d).

[Ground of recognition] Facts without dispute, Gap evidence 1 through Gap evidence 4, Gap evidence 9, Gap evidence 10, Eul evidence 4, Eul evidence 9 (including each number), and the purport of the whole pleadings

2. The assertion and judgment

A. The assertion

The Plaintiff is the cause of the instant claim. As Defendant 1, who is not the sectional owner of the instant apartment, disposes of the right to use the site separately to the Defendant Korea Land Trust, it is null and void in violation of Article 20 of the Act on Ownership and Management of Condominium Buildings (hereinafter “the Aggregate Buildings Act”), Defendant Korea Land Trust is obligated to cancel the instant trust registration, and Defendant 1, who is the sectional owner of the instant apartment (No. 2 omitted), is obligated to implement the procedures for the registration of transfer of ownership of the instant land based on the acquisition of the section of exclusive ownership.

B. Determination

The right to use site of a sectional owner shall be subject to the disposition of his section of exclusive ownership, and the sectional owner shall not dispose of the right to use site separately from his section of exclusive ownership unless otherwise stipulated by the regulations (Article 20(1) and (2) of the Aggregate Buildings Act). Meanwhile, the time when a sectional owner of an aggregate building acquires the right to use site for a section of exclusive ownership shall coincide with the time when an aggregate building is established, and in principle, the time when the whole building is completed and registered as a sectional ownership in the building ledger of the building concerned as a sectional ownership (see Supreme Court Decision 2004Da67691, Nov. 9, 2006, etc.). Accordingly, in order to establish the sectional ownership of an aggregate building, the whole building shall meet the requirements for a building as an independent real estate by the columns, walls, and roof, etc., and each part of the sectional ownership, which is the object of the sectional ownership, should be seen as an independent building after having structural independence and independence or independent nature to the extent that it can be seen as an independent building.

Therefore, as to whether the apartment building of this case was subject to the Aggregate Building Act at the time of the registration of the trust of this case, that is, the statement of Nos. 5 through No. 8, and No. 8 (including various numbers), and the fact-finding on the Han Construction Co., Ltd. of the Patent Court as to whether the apartment building of this case was established as an aggregate building, the following circumstances, i.e., the apartment building of this case was merely concrete frame, tent, and tent construction of each floor from the second floor to the 12th floor above the ground until August 25, 2003, and the construction process ratio including the above framed was limited to 22.193% as of August 18, 200, and the right to separate the apartment building of this case was not established at least after the completion of the registration of the trust of this case, and the right to separate the apartment building of this case from the building of this case, to the extent that the building of this case was independent and independent, and the building of this case.

Thus, the plaintiff's claim of this case, which is premised on the establishment of sectional ownership, is without merit.

3. Conclusion

Therefore, all of the Plaintiff’s claim against the Defendants is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment]

Judge final (Presiding Judge) Ha Hong-young Hong