[1] Whether a customary real right equivalent to ownership exists to a transferee of an unregistered building without permission (negative), and whether a person who has purchased a new building but failed to complete the registration of ownership transfer may directly file a claim for surrender based on his/her own ownership, etc. against the illegal occupant of the building (negative)

[2] The case reversing the judgment of the court below that the defendants who possess the above building had a duty to order the plaintiff to surrender the building although the plaintiff purchased the unregistered building from the original purchaser, but did not yet complete the registration of ownership transfer, did not request the registration of ownership transfer by subrogation of the above seller

[1] Even if a transferee of an unregistered building without permission has not completed the registration of ownership transfer, he cannot acquire the ownership of the building unless the registration of ownership transfer has been completed, and it cannot be deemed that there is a customary real right equivalent to the ownership to the transferee of such building. Thus, a person who newly constructed the building and purchased the building from the original acquisitor of the building, but fails to complete the registration of ownership transfer, may not directly claim against the illegal occupant of the building on his own ownership, etc.

[2] The case reversing the judgment of the court below that the defendants who possess the above building have a duty to order the plaintiff to surrender the building although the plaintiff purchased the unregistered building from the original purchaser, but did not yet complete the registration of ownership transfer, on behalf of the above seller, did not request the registration of ownership transfer.

[1] Articles 185, 186, and 213 of the Civil Act / [2] Articles 185, 213, and 404 of the Civil Act

[1] Supreme Court Decision 69Da1485 delivered on October 14, 1969 (No. 17-3, 202) Supreme Court Decision 73Da114 delivered on July 24, 1973 (No. 21-2, 150) Supreme Court Decision 94Da5306 delivered on June 14, 1996 (Gong196Ha, 2144), Supreme Court Decision 2006Da49000 delivered on October 27, 2006 (Gong2006Ha, 1995)

Plaintiff

Defendant 1 and one other

Suwon District Court Decision 2006Na624 decided January 11, 2007

The part of the judgment of the court below concerning the claim for the name of building is reversed, and that part of the case is remanded to the Panel Division of the District Court. The remaining appeals are dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the claim for the surrender of a building

A. The court below rejected the defendants' assertion that Defendant 1 had built each of the buildings of this case and acquired the ownership of each of the buildings of this case on the grounds of lack of proof as stated in its reasoning, and recognized that the person who had built each of the buildings of this case and acquired the ownership of this case was the non-party. In light of the records, the court below's measure is just, and there is no violation of the rules of evidence as otherwise alleged in the grounds

B. The lower court determined that the Defendants, who occupied and used each of the instant buildings, have the duty to order the Plaintiff to purchase each of the instant buildings, the unregistered condition, from the Nonparty, the original acquisitor, and completed the registration of ownership transfer regarding the relevant site.

However, such determination by the court below is difficult to accept for the following reasons.

Even if a transferee of an unregistered building without permission has not completed the registration of ownership transfer, he cannot acquire the ownership of the building unless it has been completed, and it cannot be deemed that there is a customary real right equivalent to the ownership to the transferee of the building in such state (see, e.g., Supreme Court Decisions 94Da53006, Jun. 14, 1996; 2006Da49000, Oct. 27, 2006). A person who newly constructed the building and purchased the building from the original acquisitor of the ownership, but fails to complete the registration of ownership transfer, may not claim against the illegal occupant on his own ownership, etc. (see, e.g., Supreme Court Decisions 69Da1485, Oct. 14, 1969; 73Da114, Jul. 24, 1973).

Nevertheless, in this case, where the Plaintiff did not claim for surrender on behalf of the Nonparty who is the seller, the lower court determined that “the Defendant is obligated to order the Plaintiff to order each of the buildings of this case.” In so doing, the lower court erred by misapprehending the legal doctrine on the legal status of the transferee of unregistered buildings, thereby adversely affecting the conclusion of the judgment.

2. As to the ground of appeal on the claim for land delivery and removal of buildings

The court below rejected the defendants' assertion that Defendant 1 newly constructed a warehouse, container, or new warehouse (hereinafter "the above warehouse, etc.") as stated in Section 1-A of the judgment of the court of first instance is a part of the period during which the ownership transfer registration was made in the name of Defendant 1 with respect to each of the land of this case, and as such, Defendant 1, the owner of the above warehouse, etc., acquired a customary legal superficies for the above warehouse, etc. against the plaintiff who is the owner of each of the above land of this case, on the ground of lack of proof as to the alleged facts. In light of the records, the court below's measures are just, and there is no violation of the rules of evidence and misapprehension of legal principles as to legal superficies, as otherwise alleged in the grounds for appeal. The above

3. Therefore, the part of the judgment of the court below regarding the claim for the name of building is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)