Kang mari (Law Firm Lee Gan, Attorneys Lee Du-won, Counsel for defendant-appellant)

Park Jong-sik (Law Firm U.S., Attorney Park Jong-il, Counsel for the plaintiff-appellant)

June 1, 2006

Seoul Central District Court Decision 2005Kadan97697 Decided November 17, 2005

1. Revocation of a judgment of the first instance;

2. It is confirmed that the Plaintiff and the Defendant actually owned the ownership of an unauthorized building as indicated in the separate sheet.

3. The costs of the lawsuit shall be borne by the defendant in the first and second instances.

The judgment of the first instance shall be revoked. It is confirmed that an unauthorized building listed in the attached Form between the plaintiff and the defendant is owned by the plaintiff.

1. Basic facts

The following facts may be acknowledged in accordance with the facts inquiry results and the purport of the whole pleadings on October 12, 2005 to the head of Yeongdeungpo-gu Office of this Court, or there is no dispute between the parties, or according to Gap evidence 1, 2, Gap evidence 4 through 8, Eul evidence 1 and 2 (including each number), Eul evidence 1 and 2.

A. Regarding the unauthorized Building Register prepared by the head of Yeongdeungpo-gu Seoul Metropolitan Government on the building without permission listed in the separate sheet (hereinafter “instant building”), the instant building was an unauthorized building constructed before April 8, 1982, and its owner’s name was stated as “Glaunk” for the first time. However, on October 15, 2004, Kim Jong-do’s name was changed to “Glaunk’s name” for the reason of inheritance, and the owner’s name was changed to “Glaunk’s name.” On January 14, 2005, the Defendant received KRW 30 million from the Defendant, and the owner was changed to the owner’s name for the reason of sale.

B. On September 30, 1978, with respect to the land for the instant building, 263-23 square meters and 26 square meters (hereinafter “the site before the instant subdivision”), the ownership transfer registration was filed in the name of Chuncheon on the ground of sale on September 30, 1978. On June 27, 1983, the Plaintiff’s mother was registered on the ground of sale and purchase, and the ownership transfer registration was made in the name of the Plaintiff’s mother on February 21, 1984.

C. On April 10, 1979, Kim Jong-do married with Lee Gyeong-hee, but died on December 14, 1979, and on December 14, 1979, Kim Jong-do and Lee Jong-hee jointly succeeded to Kim Jong-hee.

D. On June 10, 202, the site prior to the instant subdivision was divided into 263-23 square meters and 13 square meters and 263-90 square meters and 13 square meters of the same (hereinafter “instant site”). The instant site was incorporated into the part of the “road-ro Road Expansion Works” which was implemented by Yeongdeungpo-gu as an urban planning project and acquired on March 26, 2004, and the Plaintiff received compensation KRW 22,048,000 from the Yeongdeungpo-gu Office on March 30, 2004.

2. Determination on the defense prior to the merits

As to the Plaintiff’s claim against the Defendant, which confirmed that the building of this case is owned by the Plaintiff, the Defendant asserted that the claim of this case is unlawful because it did not have any interest in confirmation, and thus, as a result of the fact-finding inquiry on May 29, 2006 to the head of Yeongdeungpo-gu Office of this Court, the Defendant is not entitled to pay KRW 8,210,00 to the owner of the building of this case, as part of the building of this case was incorporated into a road and removed, and thus, the Plaintiff is dissatisfied with the Plaintiff’s ownership of the building of this case. Thus, the Defendant’s claim of this case has a interest in confirmation,

3. Judgment on the merits

A. Determination on the Plaintiff’s claim for ownership verification

(1) On June 27, 1983, the plaintiff first purchased the land of this case from Eskhee, his mother, to purchase the land of this case and then acquired the ownership of the above building by purchasing the above building and site from the last order of February 21, 1984, and even if not, the plaintiff acquired the ownership of the above building after the lapse of 20 years from February 21, 1984 by occupying the above building in peace and openly and openly with intent to own the above building. Thus, the plaintiff acquired the ownership of the above building by prescription. Thus, the defendant asserts that he is obligated to confirm that the above building is owned by the plaintiff.

(2) In the case where the unregistered building was constructed and transferred, the ownership of the building still remains in the person who constructed the building, which is the original acquisitor of the ownership of the building, and the person who purchased the building unregistered from the first owner merely acquires the status to dispose of it legally or in fact, and does not acquire the ownership of the building. Even according to the plaintiff's assertion itself, the building in this case is merely an unregistered unauthorized building, and the plaintiff is merely a person who continuously purchased the building in this case from Escar and the highest order, and it is not the owner of the building in this case, even if the acquisition by prescription for the building in this case was completed as the plaintiff's assertion, and therefore, the plaintiff is not the owner of the building in this case. Therefore, the plaintiff's claim seeking confirmation of ownership on the premise that the building in this case is owned by the plaintiff is without merit.

(3) However, the plaintiff's assertion in the claim of this case seems to include the content of seeking confirmation of ownership against the defendant by asserting that the plaintiff has a de facto ownership that can use, benefit from, and dispose of the building of this case by purchasing the building of this case or acquiring the prescription of this case. Further, the fact that the actual owner of the building of this case is expected to be paid compensation for removal to the owner of the building of this case as seen above (the "owner" appears to mean "the de facto owner" in the fact inquiry conducted on May 29, 2006 against the head of Yeongdeungpo-gu Office of the court). Since the defendant is disputing this, the plaintiff's interest is recognized to confirm that the plaintiff is the de facto owner of the building of this case, so it shall be determined whether the plaintiff has a de facto ownership.

B. Whether the Plaintiff purchased the instant building

On June 27, 1983, the Plaintiff’s best example purchased the site before the instant subdivision from Chuncheon, and on February 21, 1984, the Plaintiff purchased the site before the instant subdivision from the foregoing maximum order, and on the ground at the time of the purchase by the Plaintiff of the site before the instant subdivision through Escar and the best order, the fact that the instant building had already existed on the ground at the time of the purchase by the Plaintiff of the site before the instant subdivision does not exist between the parties.

In addition, according to the evidence No. 1-1 and evidence No. 4, and the overall purport of testimony and pleadings by the witness Kim Jong-soo, the Plaintiff’s family members leased two directors and two rooms to the instant building on September 8, 1979, and resided in the instant building together with Kim Il-J, Lee Jong-hee, and Kim Jong-J Kim Jong-kon’s family members. ② On December 14, 1979, Lee Jong-hee sold the instant land before the instant partition to the maximum head of the Plaintiff, and the director to another place, the Plaintiff’s family members continued to reside in the instant building after the instant building was leased, and even after the date of the instant partition, the Plaintiff did not own the instant building on October 31, 190 while the Plaintiff was established as the debtor on the instant land before the instant subdivision, and the Plaintiff’s family members had no right to establish superficies for the purpose of owning Kim Jong-k’s building with the view to owning the right to use the instant building for a change in the name of the Plaintiff’s heir and heir for more than 30 years thereafter.

In conclusion, in light of the facts acknowledged above, this Chuncheon acquired the ownership of the building of this case as of October 5, 1978 when acquiring the ownership of the site before the partition, or acquired the actual ownership of the building of this case as of October 5, 1978, or obtained the implied delegation of the right to dispose of the building equivalent to the inheritance shares from the Kim Line, which was the co-inheritors of the building of this case (or can it be deemed that the disposal of the building of this case was ratified after the Cruk Kim Line became adult), and on June 27, 1983, sold the building site of this case and the building of this case to the maximum order, the plaintiff purchased the building site and the building before the division from the last order.

C. Sub-committee

Therefore, the Plaintiff purchased the instant building from Escar (or Kim Jong-khee and Kim Jong-kak), which is the first owner of the instant building, through the best order. As such, the Plaintiff has de facto ownership in the instant building.

4. Conclusion

Therefore, the claim of this case against the defendant for the actual ownership of the building of this case against the plaintiff is justified, and the judgment of the court of first instance is unfair with different conclusions, and thus it is revoked by accepting the plaintiff's appeal and it is so decided as per Disposition by confirming that the building of this case is the actual ownership of the plaintiff.

[Attachment Omission of List of Real Estate]

Judges Kim Gyeong-soo (Presiding Judge)