2013Na52820 Claim for Land Use Fees

KWPPP Investment Co., Ltd.

A Representative Director

Law Firm B

1. C

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3

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5

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10. N in the lawsuits of M;

11. 0

[Defendant-Appellant] Defendant P

Busan District Court Decision 2013Da44648 Decided December 11, 2013

December 18, 2014

March 19, 2015

1. Of the judgment of the court of first instance, the part against the plaintiff ordering payment shall be revoked.

The Plaintiff

A. Defendant K, L, N, andO

1) The amount of money set forth in the column of each subparagraph of [Attachment 3-Attachment 3-A] and the amount calculated by 5% per annum from August 24, 2013 to March 19, 2015, and 20% per annum from the next day to the day of complete payment;

2) The money stated in the column of each subparagraph of attached Form 3 of the Fee Calculation Table (B) of Attached Form 3 each month from March 14, 2013 to the end of the day on which the Plaintiff loses his/her ownership interest in the land listed in Attached Table 1 List 1, or the possession of the said Defendants;

B. Defendant C, D, E, F, G, H, and J

1) The amount of money set forth in the column of each subparagraph of [Attachment 3] of the fee calculation sheet for recognition under [Attachment 3, and the amount calculated by 5% per annum from August 24, 2013 to March 19, 2015, and 20% per annum from the next day to the day of complete payment;

2) From March 10, 2013 to March 10, 2013, the Plaintiff loses the Plaintiff’s ownership in the land listed in Annex 1 List 2, and from the end of the possession of the said Defendants, the money listed in each of the subparagraphs of (d) of the same Table is paid each month.

2. The plaintiff's remaining appeals against the defendants are all dismissed.

3. 19/20 out of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendants, respectively.

4.Paragraph 1-A(1) and (b)(1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant C, D, E, F, G, H, and J shall jointly and severally pay to the plaintiff 28,235,581 won and the amount calculated by the rate of 20% per annum from the day following the delivery date of a copy of the request for change of the purport of the claim and the cause for the claim on August 21, 2013 to the day of complete payment, the aforementioned land as stated in attached Tables 2 through 10 from March 14, 2013 to the day of the completion of possession of the defendants or the day of loss of the plaintiff's ownership or commercial zone share, the amount calculated by the rate of 4,641,679 won per annum from the day following the due date of payment to the day of full payment, the amount calculated by the rate of 20% per annum from the day following the due date of payment to the day of 30% per annum and 10% per annum from the day of full payment to the day of 18th day of delivery and 20% per annum.

1. Basic facts

The reasoning for this part of the court's explanation is the same as that of Paragraph 1 of Article 420 of the Civil Procedure Act, so this part of the reasoning of the court's judgment is cited as it is.

2. Determination on this safety defense

A. The defendants' assertion

The instant lawsuit is unlawful as it falls under a discretionary litigation trust, since the Plaintiff was a co-Plaintiff in the first instance trial and the withdrawal was delegated by the Gu Office of Land Use Fees.

B. Determination

The plaintiff purchased the ownership share of the land of this case from Q, R, S, and T, and acquired the land of this case 2, 3 as a compulsory auction under the name of the school juristic person Ulsan National Institute of Education, and acquired the ownership share of the land of this case 4, 10 from Q, U, S, and V, and the fact that the co-Plaintiff of the first instance court acquired the ownership share of the land of this case from Q, X,Y, Y, Z, AA, BB,CC, and DD is clear in the record. According to such recognition, insofar as the plaintiff did not acquire the ownership or superficies of the land from those who were co-Plaintiffs in the first instance court, the lawsuit of this case cannot be deemed to have been instituted with the delegation of the claim for land use fee by those who were voluntarily withdrawn from the first instance court. Thus, the above assertion by the defendants is without merit.

3. Judgment on the merits

A. The parties' assertion

1) Plaintiff

A) Ownership-related

(1) The Plaintiff is a beneficial right holder of the instant land No. 1, and Defendant K, L, M, andO occupy the said land without permission as a sectional owner of each part indicated in the column of “No. 1” of the instant building A, located in the said land. Therefore, the said Defendants shall jointly and severally return to the Plaintiff the portion corresponding to the said share of the unjust enrichment equivalent to the land rent accrued after the date on which the Plaintiff acquired the said share, which falls under the said share of the said portion of the unjust enrichment.

(2) The Plaintiff is the owner of the instant land Nos. 2 and 3, and Defendant C, D, E, F, G, H, and J jointly occupy the said land as a sectional owner of each part of the instant building No. 3’s units of the instant building located on the said ground. Therefore, the said Defendants shall jointly and severally return to the Plaintiff unjust enrichment equivalent to the land rent that occurred after the date on which the Plaintiff acquired the ownership of each of the said land (as for the instant land for which a partial superficies was established, only the remainder of the land for which the superficies was not established).

B) Regarding superficies

The Plaintiff is the beneficial right holder of Q, R, S, and V of the superficies created on the land of this case, and is the party to whom the claim for the rent accrued in the past from Q, R, S, and V was transferred. Therefore, Defendant C, D, E, F, G, H, and J, which is the sectional owner of some of the instant building located on the ground of this case, jointly and severally possessed the land of this case 4 through 10 without permission, shall return to the Plaintiff the portion equivalent to the above share out of the unjust enrichment equivalent to the land rent or rent accrued after March 8, 202.

2) The Defendants

A) The props in this case renounced exclusive and exclusive rights to use and benefit from the land in relation to each of the instant stores by providing free of charge the ownership of the instant market site or superficies established on the ground thereof for the use of each of the instant buildings, and the Plaintiff also acquired the land ownership or superficies with knowledge of the circumstances, at least, that it was the burden of restricting such use and right to benefit.

B) After having been invested in the instant market site from the subject, each of the instant buildings was newly constructed and divided into 344 stores, the Defendants distributed the instant land to the subject party according to the ratio of the area of the invested land. The Defendants acquired several of their stores and acquired and distributed several of them, thereby acquiring the right to use the site.

B. Requests for restitution of unjust enrichment

1) Whether to return unjust enrichment

A) Determination on the cause of the claim

(1) Relevant legal principles

(A) Since sectional owners of one building share the section for common use as divided ownership, they jointly possess and use the entire site of the building, barring special circumstances (see Supreme Court Decision 2012Da7670, Sept. 4, 2014).

(B) Meanwhile, in order for sectional ownership to be established for one building, there exists one building in terms of objective and physical aspects, and separate parts of the building should have independence in structural use, and the physically partitioned parts of one building should be the object of sectional ownership. Here, division of a building is a kind of legal act that intends to divide a specific part of a building into an object of sectional ownership without changing the physical form and quality of the building, and it is recognized if the intention of the disposal authority to divide the specific part of the building is objectively displayed on the outside (see Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013).

(2) Determination

(A) We examine the following circumstances, comprehensively taking into account the facts of the above recognition and the overall purport of each entry and pleading Nos. 22, 49, 50, 51, 52, 53, and 54 (including paper numbers) in the evidence as follows. ① The 143 of the instant Adong water and the instant props were divided into about 20 units, and the 201 stores were divided into about 143 of the instant building and distributed the instant B building to the instant props according to the ratio of the size of the land, and the registration of ownership was completed in their own name. However, it is reasonable to see that the building was separated into the instant site due to the problems such as the state-owned land, the registration tax, etc., and that the building of this case was owned in the name of the owner on the register without registering the ownership of the apartment before being discharged, and that the building of this case was registered on the aggregate register on September 26, 1974.

(B) Therefore, barring special circumstances, the Defendants are obligated to return to the Plaintiff unjust enrichment equivalent to the rent from the date of acquisition of the Plaintiff’s ownership or ownership or superficies ownership or superficies ownership to the date of completion of the Plaintiff’s possession, or from the date of loss of the Plaintiff’s ownership or ownership or superficies ownership or superficies ownership.

B) Determination as to the Defendants’ assertion

(1) Whether the plaintiff has the right to use

(A) Relevant legal principles

Where it is reasonable to deem that the previous owner of the land waives his/her exclusive and exclusive right to use the land, the person who has acquired the ownership or superficies of the land shall not exercise his/her exclusive and exclusive right to use and benefit from the land, as he/she permits the acquisition of the right to use and benefit from the land.

(B) Whether the instant props waive their right to benefit

In light of the following circumstances, the aforementioned facts and evidence Nos. 1,13,18, Eul evidence No. 47-2, 14-2, and the overall purport of pleadings, i.e., the props of this case agreed to the effect that around 1975, they would belong to the market site of this case as public property of the commercial building market and would not jointly sell, lease, transfer, etc., in the future. ② Based on the above agreement, the props of this case contributed to their own land and completed registration of ownership by allocating stores within each building of this case according to their ratio, but they had no exclusive ownership transfer to the apartment site of this case. ⑤ The owners of this case were established for the purpose of implementing the above agreement on the land of this case and the owners of this case were not entitled to use the land of this case for the purpose of using the land of this case, including the fact that the owners of the above land of this case and the right to use the land of this case were established for the purpose of using the land of this case and the right to use the land of this case were established for 7 years after each of this case.

(C) Whether the plaintiff's permission is acceptable

① As to the land No. 1 and No. 2

The plaintiff acquired shares of 63/91 of the land of this case from the heir of EE, one of the instant land owners, as seen earlier. In full view of the purport of the entire pleadings in Gap evidence No. 9-3, the plaintiff's representative director confirmed the current state of the land of this case before the plaintiff acquired the land of this case from the auction site that he joined the auction site of this case, and the fact that the building other than those presented on the ground (the first floor, third floor, third floor, common floor, apartment building) is reconstructed on the ground in the remarks column of the specification of the sale goods posted on the above auction site, and only the land is sold. The plaintiff knew that the representative director visited the site before acquiring the land of this case 2 before acquiring the land of this case through auction, and there is no reason to acknowledge that the plaintiff did not have any burden on the use of the land of this case and the ownership of each part of the above land of this case.

② As to land Nos. 3 through 10

In light of the following circumstances, the above facts and evidence Nos. 47-17 and 18, comprehensively taking into account the overall purport of the statements and arguments, i) permanent superficies has been established on the land Nos. 3 and 10 in order to jointly manage the land of this case as public property in the commercial market and to implement the agreement of the props in this case that the plaintiff would not take any action against others in the future; ii) the representative director confirmed the current status of the land of this case at the auction site that the plaintiff joined before acquiring the auction; and (ii) it seems to have been sufficiently known that the superficies was established; and (ii) the plaintiff was sufficiently known that the superficies was established on the land of this case; and (iii) the plaintiff agreed to transfer part of the superficies on the land Nos. 4 and 10 for the land of this case from the heir of EE, one of the land of this case, and return it to the land owner; and there is a reasonable ground to view that the plaintiff was a limit to the use or profit of the land of this case No. 30 or the land of this case.

(2) Whether the defendants' right to use site has been established

On the other hand, the Aggregate Buildings Act is applicable even to a building constructed or divided before the enforcement of the Act, and the right to use site is a right that a sectional owner has against the site of a building in order to own a section for exclusive use. For its establishment, other special requirements are not required, except for the existence of an aggregate building and the right that a sectional owner has the right to use the site for the possession of a section for exclusive use. However, there is no evidence to acknowledge that the owner of each shop of this case has the right to use the land Nos. 1 and 2 of this case for the ownership of each shop. Thus, the defendants' above assertion is without merit.

2) Scope of return of unjust enrichment

A) In ordinary cases, the amount of profit from the possession or use of real estate is equal to the amount of the rent of the real estate. According to the results of appraisal by an appraisal corporation, one corporation is the corporation. ① Annual rent from March 14, 2012 to March 13, 2013 as to the Plaintiff’s share among the land of this case is 12,430,495 won; ② Annual rent from December 10 to December 9, 2011 is 32,875,920 won from December 20, 201 to December 30, 2011; and Plaintiff from December 10, 201 to December 9, 2012 to December 13, 2012 to 33,872,160 won from December 14, 201; and Plaintiff from December 10 to 33, 2013 to 13, 2014 to 13.4,2013.

B) Accordingly, if the amount of unjust enrichment is calculated in accordance with each entry of No. 54-1 and No. 54-2, the sum of the entire area of the building A Dong Dong building of this case is 1,063.15 square meters, and the sum of the entire area of the building B Dong building of this case is 1,219.54 square meters, and as seen earlier, the Defendants’ whole area is the same as the entry of [Attachment 1] and [Attachment 2] in each building’s separate section of exclusive ownership. Thus, if the Defendants seek a share to be registered as a site ownership for each part of exclusive ownership of the Defendants, it is identical to the entry of the separate site ownership list in attached Form 2, and if the amount of the appraisal of rent recognized as above by the Defendants to be borne by the Plaintiff according to the share ratio of the above site ownership is calculated based on the amount of rent assessment recognized as above, it is identical to the entry in the separate sheet

C) Meanwhile, the Plaintiff sought a return of unjust enrichment against the Defendants on the entire commercial area, rather than the share of a site ownership, but the right to use the site is the right that a sectional owner owns on the site of a building for the purpose of owning a section for exclusive use (Article 2 subparag. 6 of the Aggregate Buildings Act), and multiple sectional owners jointly own or complete the right to use the site for the entire purpose of which a building is located, and each co-owner's share is in accordance with his/her ratio of the area of his/her section for exclusive use (Article 21(1) and Article 12 of the Act on the Ownership and Management of Aggregate Buildings). Therefore, the obligation of multiple sectional owners to return unjust enrichment due to the use without the title of the site for an aggregate building is a separate obligation, and the Plaintiff'

3) Sub-decisions

Therefore, Defendant K, L, N, andO shall be deemed as unjust enrichment equivalent to the rent stated in the corresponding column of Paragraph (a) of Attached Table 3, and as the Plaintiff seeks with respect thereto, it is reasonable to conclude that the above Defendants’ claim for unjust enrichment from August 21, 2013 to August 24, 2013, which is the day following the delivery of the copy of the application for change of claim, is reasonable to dispute as to the existence and scope of the above Defendants’ obligation to pay for unjust enrichment from August 19, 2015 to March 19, 2015; the damages for delay calculated at the rate of 20% per annum from the next day to the day of complete payment; and the damages for delay from March 14, 2013 to the 20th day after the above Defendants’ claim for unjust enrichment from March 14, 2013 to the day of complete payment; thus, it is reasonable to conclude that the above Defendants’ claim for unjust enrichment from 20% of the above Defendants’ respective claim for change of ownership and its claim.

(c) A claim for rent or credit which has occurred on the part of a transferee;

However, as seen earlier, since the props in this case renounced the exclusive and exclusive right to use and benefit from the land in relation to the owner of each shop in this case, it is reasonable to deem that the land-based claim based on the superficies established on the land Nos. 4 and 10 did not accrue. Thus, the plaintiff's assertion based on the premise that the land-based claim occurred is without merit.

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and the remaining claims are dismissed in its entirety as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, the plaintiff's appeal against the defendants is partially accepted, and the court of first instance orders the payment of the above amount of the admission fee to the defendants, and the remaining appeals are dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Exemplary (Presiding Judge)

Clinical Citizens

Notarial decoration;

Attached Table 1

List of Real Estate

1. Busan Jin-dong, Busan, 573-10 square meters and 61.8 square meters;

2. Busan Jin-dong 573-34 60.5 m.

3. Busan Jin-dong 573-35 108m2, Busan Jin-dong.

4. Mate of the registry of Busan-dong 573-36, Busan-dong 88.3m.

5. Busan Jin-dong 573-48 25.5 m.

6. Mate of the registry of Busan-dong, Busan-dong 573-49 to 67.1m;

7. Busan Jin-dong, Busan, 573-50 square meters and 29.8 square meters.

8. Busan Jin-dong 573-51 13.2m2m2.

9. Busan High-dong, Busan High-dong 573-52 17.5 meters

10. The end of the Busan Jin-dong 573-60 square meters, Busan Jin-dong 19.8 square meters.

Attached Table 2

List of Site Ownership Shares

A person shall be appointed.

* The size of each section of exclusive ownership of the Defendants / The total area of the building A or B of this case

Enemy

Attached Form 3

Recognition Fee Calculation List

A person shall be appointed.

* Recognition fee = Ownership Ownership Ownership Ownership Ownership of the Plaintiff’s share in the land of this case or the second land of this case

Amount of appraisal of rental fees (turf less than the original amount)