If the owner newly constructs a new building after the partial destruction of the existing building and the registration of alteration was made in accordance with the new building to indicate the title section of the register of the existing building, the effect of each establishment registration before and after the alteration of indication has been made.

If the owner newly constructs a new building after the partial destruction of the existing building and the registration of alteration was made in accordance with the new building to indicate the title section of the register of the existing building, not only the registration of establishment of a new building but also the registration of establishment of a new building completed after the alteration of indication is completed shall not be effective in the new building.

Article 186 of the Civil Act, Articles 15, 101, and 101-2(1) of the Registration of Real Estate Act

Supreme Court Decision 75Da2211 Decided October 26, 1976 (Gong1976, 9453) Supreme Court Decision 80Da441 Decided November 11, 1980 (Gong1981, 13396) Supreme Court Decision 91Da39184 Decided March 31, 1992 (Gong192, 1414)

Yellow Steel (Attorney Kim Young-soo, Counsel for the defendant-appellant)

[Defendant-Appellee] Plaintiff 1 and 2 others (Attorney Jeong Jong-soo et al., Counsel for defendant-appellee)

TM Korea’s Human Investment Association (Law Firm Daeung General Law Office, Attorneys Choi Woo et al., Counsel for the plaintiff-appellant)

Daegu District Court Decision 2005Da24612 Decided September 13, 2005

August 18, 2006

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 73,419,537 won with 5% interest per annum from October 14, 2003 to March 19, 2005, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

[Reasons for Recognition] Unsatisfy, each entry of Gap1 through 7 evidence (including paper numbers), the purport of the whole pleadings

A. The registration relationship of this case

(1) On May 31, 1985, on the ground of the 164-2 or 5, the building originally indicated in the annexed Table 1 (hereinafter “instant land and existing building”) was newly constructed, and the registration of preservation of ownership was completed in the name of stuffed house on May 31, 1985.

(2) On September 6, 1995, the registration of creation of a mortgage Nos. 1, 1996 billion won under the name of the defendant, the registration of creation of a mortgage, Nos. 2, 3 (2, 4 in the case of the instant land) under the name of the Dong Bank Co., Ltd., the maximum debt amount of KRW 8 billion on April 29, 1997, and Nos. 2, 5 billion won, respectively, was completed.

(3) After that, as part of the existing building of this case was destroyed or lost, the new building was built on the ground, and the registration of alteration was completed on April 23, 1998 with the building listed in the attached Table 2 (hereinafter “instant building”). Among the buildings listed in the same list, the building Nos. 1 through 10 is the new building (hereinafter “new building”) and the building Nos. 11 through 17 is the remaining building (No. 1 through 7 among the existing buildings listed in the attached Table 1), which remains after the destruction of the existing building of this case. In the case of the previous building, the use of the building is changed to the juvenile training facility and the roof’s material is changed to the ice.

(4) After the registration of change of indication was made, the registration of establishment of a neighboring mortgage in the Plaintiff’s name was completed only with respect to the instant building on the same day. Meanwhile, the registration of establishment of a neighboring mortgage Nos. 2 and 3 (2 and 4 in the case of the instant land) in the name of the Daedong Bank was successively transferred to the Korea Assets Management Corporation on December 18, 1998, and on April 25, 2000 to the Intervenor.

(b) Commencement and distribution of the auction procedure;

(1) At the request of the Intervenor, the auction procedure of real estate rent in Daegu District Court Decision 2000 Gaz. 13074, Daegu District Court Decision 2000 Gaz. 13074, and the auction procedure of real estate rent in the total amount of KRW 4,101,00,000, including the instant land and the instant building and the instant building and the land of the building consisting of the above land and the building.

(2) On October 14, 2003, the above auction court held that the registration of creation of each of the above mortgage over the existing buildings of this case by the defendant and the auxiliary intervenor extends to the entire new building of this case. The above auction court held that the registration of creation of each of the above mortgage over the existing buildings of this case by the defendant and auxiliary intervenor extends to the defendant 196,00,000 won, the maximum debt amount, and the supplementary intervenor distributed to the defendant 2,23,075,263 won (the second priority 914,78,765 won + the 8th priority 1,318,286,498 won) from the proceeds of the sale of related real estate including the land and the building of this case, and prepared a distribution schedule with the content that the plaintiff does not fully distribute to the plaintiff.

(3) The Plaintiff appeared on the date of the above distribution, and raised an objection against KRW 450,00,00 among the amount of dividends against the Intervenor, and then brought an action of demurrer against the Defendant under Daegu District Court Branching 2003Gahap776, Jan. 28, 2005. On January 28, 2005, the same court rendered a judgment in favor of the Plaintiff that the amount of dividends against the Plaintiff was KRW 914,78,765, and KRW 802,961,343, and KRW 111,827,422, respectively, and the said judgment became final and conclusive around that time. Meanwhile, as the Plaintiff did not raise an objection against the Defendant on the date of the above distribution, the part against the Defendant in the above distribution schedule became final and conclusive.

2. The parties' assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

Although registration was made in the form of change of indication in the register of the existing building with respect to the new building, it is practically different from the existing building. As such, the validity of the establishment registration of a neighboring mortgage on the existing building cannot be affected by the new building. Therefore, the sale price of the new building of this case shall be preferentially distributed to the Plaintiff, who is the senior mortgagee of the new building, rather than the Defendant or

Therefore, even though the Defendant did not have any title to receive the sales proceeds of the new building of this case, he received the sales proceeds of KRW 73,419,537 out of KRW 185,246,959 from the new building and obtained unjust gains, and thus, the Defendant is obligated to return such proceeds to the Plaintiff, who is the mortgagee having priority over the new building of this case.

(2) The defendant's assertion

(A) Since the Defendant, as a senior mortgagee of the instant land and building, was able to secure the claim by means of the sale price for the instant land, the Defendant did not obtain the benefit without any legal ground.

(B) The above auction court comprehensively sold several real estate including the instant land and the instant building, and accordingly, the Defendant received dividends from “Distribution Things No. 4”. It is unclear where the new building of this case is included in “Distribution Things No. 4 or 7.” If it is included in “Distribution Articles No. 7, the said dividends against the Defendant are justifiable.

(C) If the registration of establishment of a new building in the instant case was a wholly independent new building, and the establishment of a new building in the instant case does not extend to the validity of the registration of establishment of a new building in the Defendant, the registration of initial ownership shall be made for the new new building and the registration of alteration of indication of the existing building cannot be substituted by the registration of alteration of indication. Therefore, the registration of establishment of a new building in the instant case, which was completed after the registration of alteration, cannot be effective for the new

(D) Even if the establishment registration of a mortgage on the newly constructed building of this case is valid when only the alteration registration of the indication of a new building was completed, the Plaintiff’s act of establishing a mortgage on the newly constructed building of this case cannot be asserted to the Defendant as an unlawful act against the Defendant or an act contrary

(b) Markets:

(1) If a new building was newly constructed at the same time after the existing building was destroyed or lost, both buildings cannot be deemed the same building. Even if the registration of change in real rights of the existing building was completed after the existing building was destroyed or lost, such registration is inconsistent with the truth and thus is null and void (see Supreme Court Decision 75Da2211, Oct. 26, 1976). Although the owner of the newly constructed building has an intention to convert the registration of the destroyed building into the registration of the new building, the registration of change in the contents of the destroyed building cannot be deemed null and void (see Supreme Court Decision 80Da441, Nov. 11, 1980; Supreme Court Decision 80Da4441, Nov. 11, 1980); and even if the owner of the existing building whose ownership preservation registration has been completed with the intention to establish the new building and with the intention to establish the new building, it shall be deemed null and void as the registration of change under the title of the existing building, it shall be deemed null and void 3194.

(2) Comprehensively taking account of the overall purport of the pleadings and arguments on the records and videos Nos. 1 through 22 of the evidence Nos. 8-1 and 22, Park Jong-ok operated a stock farm to raise litigation on the land of 226 parcels, including the land located within the area of 1,00 in the area of the Si-si, Sejong-si. The existing building of this case was used as a lodging room, stable, warehouse, toilet, bath room, etc. of the stock farm manager. The existing building of this case was to be operated by newly constructing juvenile training facilities on the land of this case with a storm around the summer of 197. The part of the existing building of this case was to be operated on the land of this case with a view to newly constructing juvenile training facilities on the land of this case with a view to 350,000,000 won, etc. of the existing building of this case. The remaining building of this case changed its structure from the housing training facilities, changed its purpose to the youth training facilities (ur accommodation facilities), and newly constructing the new building of this case No. 4.

According to the above facts, the new building of this case is a separate building that was newly constructed separately from the existing building, and not only the existing building and its physical structure, but also the building that can be the object of separate ownership in the transaction with independent economic utility in terms of its use and function, and it is difficult to view it as a accessory to the existing building or accessory thereto.

Therefore, even if the registration of change of a building indication was completed for the registration of the existing building of this case, the registration is null and void. Accordingly, the registration of establishment of a new building in the name of the defendant, which was completed for the existing building of this case, does not affect the new building of this case, and the validity of the registration of establishment of a new building in the name of the plaintiff, which was completed after the registration of change of indication, does not extend to the new building of this case. In order to realize the effect of each of the above mortgages as a new building, the registration of preservation of the new building of this case should be separately registered in accordance with the principle of one real estate registration form,

Ultimately, the Plaintiff’s assertion that only the registration of establishment of a new building of this case is invalid is without merit, without examining the remainder of the Defendant’s assertion ( even if the new building of this case is interpreted to coincide with the existing building or fall under the accessories in consideration of the owner’s intention of the stuffed building which completed the registration of marking the new building, barring any special circumstance, since the Defendant’s collateral effect is naturally limited to the new building of this case, which is the accessory to the existing building or the accessory to the new building of this case, barring any special circumstance, the Plaintiff’s claim

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff'

[Separate] List of Real Estates Nos. 1 and 2 omitted

Judges Kim Chang-soo (Presiding Judge)