(영문) 부산지방법원 2017. 11. 15. 선고 2015가합6749 제8민사부 판결

A. The Defendant Housing and Urban Guarantee Corporation shall transfer the right to claim the withdrawal of deposit money of KRW 281,472,59, deposited with the same court in accordance with the distribution schedule of July 18, 2014 pursuant to the Busan District Court B real estate compulsory auction case of KRW 281,472,59, pursuant to the same court’s distribution schedule of July 18, 2014, and shall notify the above assignment to the Republic of Korea

B. Defendant A shall pay 3,390,096 won and the interest thereon at the rate of 15% per annum from November 24, 2015 to the date of full payment.

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1-b. above may be provisionally executed.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. Legal relationship as to the land of this case and construction, etc. of above-ground apartments

1) The C Housing Association (hereinafter referred to as the “Housing Association”) is a regional housing association that was established to construct apartment (hereinafter referred to as the “instant apartment”) on the ground of 2,912 square meters of land for D 2,912 square meters of land for a factory in Busan Seo-gu (D land 3,495 square meters of land for a factory and 583 square meters of land in March 10, 2003; hereinafter referred to as the “instant land”). On November 8, 2002, the registration of ownership transfer for 30/36 shares of the above land before the said division was completed on the ground of trust. On May 12, 2003, the registration of ownership transfer for the remaining shares of the instant land among the instant land was completed.

2) On June 7, 2003, the housing association composed of three comprehensive construction companies and joint business operators, obtained the approval of the housing construction project plan of the instant apartment from the head of the Gu, and from August 8, 2003, three comprehensive construction companies commenced the instant apartment construction works, but the said construction was discontinued on or around February 2004. Accordingly, the housing association, on May 21, 2004, completed the construction by setting the deadline for the revision of the housing construction plan by the head of the Gu, upon obtaining the approval of the alteration of the housing construction project plan from the head of the Gu, on December 30, 2007, but did not reach the completion date and suspended the construction on or around December 2007.

3) Meanwhile, around March 2006, the instant apartment construction was completed in entirety from the 1st to the 12nd floor above the ground, and the columns, roof, and main walls of each floor were all built. From July 2005, the housing association concluded a sales contract on a partitioned building among the instant apartment units from around July 2005, the relocation of the apartment.

(b)provisional attachment, provisional disposition, and auction proceedings on the land of this case and distribution of the proceeds of sale;

1) As to the land of this case, the registration of provisional attachment or provisional injunction was completed on July 12, 2007 by the Busan District Court Decision 2007Kadan12090 on the application of Defendant A, and the registration of provisional attachment or provisional injunction was completed on July 12, 2007.

2) On June 9, 2014, the Plaintiff purchased the said shares in the Busan District Court B’s compulsory auction procedure (hereinafter “instant auction procedure”) with respect to the said shares on September 3080, 3089/5136.2178 shares among the instant land, and paid the purchase price on June 9, 2014.

3) On July 18, 2014, the auction court prepared a distribution schedule with a content of allocating KRW 281,472,596 to the Korea Housing and Urban Guarantee Corporation (the Korea Housing and Urban Guarantee Corporation established by Act No. 12989, Jan. 6, 2015; hereinafter referred to as the "Defendant Housing and Urban Guarantee Corporation") and KRW 33,390,096 to the Defendant A, and the Defendant A received the said dividends, but the said dividends paid to the Defendant Housing and Urban Guarantee Corporation was deposited with the Busan District Court No. 5459, Dec. 2014.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 3, 6 and 7, and the purport of the whole pleadings

2. Determination as to the cause of action

A. The time when sectional ownership regarding the apartment of this case was established

In order for divided ownership to be established for one building, there are one building in an objective and physical aspect, and separate sections of the building must have structural stability and independence in use;

There is a sort of legal act that intends to divide a building physically partitioned into the objects of sectional ownership without changing the physical form and quality of the building. Here, an act of partitioning is not a special restriction on the timing and method, but a disposal authority’s intention is objectively indicated externally. Therefore, even before the physical completion of a sectioned building, if the intention of partitioning that the building newly constructed will be a sectioned building through a building permit application or a sales contract is objectively indicated, the existence of the act of partitioning can be recognized. If the building and a sectioned building corresponding to the above mentioned above are completed objectively and objectively, even if the building are not registered in the aggregate building ledger or registered in the register of a sectioned building, it is established as sectional ownership at the time (see Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013). Furthermore, in order to be seen as an independent real estate, it shall be deemed that the building columns and columns are at least 150Da164165, Apr. 16, 2016.

On March 2006, the apartment building of this case was created both columns, roofs, and main walls, etc. from 12th underground level to 12th underground level. From July 2005, the previous apartment building of this case, the housing association concluded a sales contract on the partitioned apartment of this case from July 2005, as stated in the above basic facts. Therefore, it is reasonable to view that the apartment of this case was established at the latest as the independent building structure, use, and independent building of each building around March 2006, and that the separate intention to use the apartment of this case was objectively expressed. Accordingly, the divided ownership on each part of the apartment of this case as to each part of exclusive ownership was established around March 2006.

B. Whether the Plaintiff acquired shares in the land of this case

Article 20 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter referred to as the "Aggregate Buildings Act") provides that a sectional owner's right to use site shall follow the disposition of his/her section for exclusive use. A sectional owner cannot dispose of his/her right to use site separately from his/her section for exclusive use unless otherwise prescribed by the regulations. The prohibition of separate disposal cannot be asserted against a third party who has acquired real rights in good faith unless it is registered. The purport of the above provision is to prevent the separation of the section for exclusive use of an aggregate building and the right to use site from the creation of sectional ownership without the right to use site. Thus, the act of disposal of a site contrary to the unity of the section for exclusive use and the right to use site has no effect (see, e.g., Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013; Supreme Court Decision 2012Da16481, Jul. 25, 2019, 2014, etc.

Since the fact that the sectional ownership of the apartment of this case was formed around March 2006 at the latest, the right to use the site of this case by the housing association, which is the sectional owner of the apartment of this case, was established at that time. The fact that the provisional attachment and provisional injunction registration for the land of this case was completed from around 2007, is as shown in the above basic facts. Thus, the registration of the provisional attachment and provisional injunction registration for all of the above provisional attachment are to dispose of the right to use the site of this case separately from each of the above sections of exclusive ownership, and it is not effective against the main sentence of Article 20 (2) of the Aggregate Buildings Act. Further, the plaintiff purchased the share of 3080.9639/5136.2178 of the land of this case in the auction procedure of this case and paid the purchase price on June 9, 2014.

Even if this is also an act of disposing of the right to use land of this case separately from each of the above sections for exclusive use, it is not effective against the main sentence of Article 20 (2) of the Aggregate Buildings Act. Therefore, the plaintiff cannot be deemed to have acquired the above shares in the

C. Return of unjust enrichment

A successful bidder has been successful in the auction procedure for compulsory auction and completed a registration of transfer of ownership in the future. However, if a successful bidder becomes unable to acquire ownership of the auction real estate due to the registration that became the basis for the procedure for compulsory auction, which is the registration of invalidation of the registration of transfer of ownership in the name of the debtor, the compulsory auction procedure, such compulsory auction shall be null and void. As such, the successful bidder may file a claim with the creditor for return of the amount he/she received out of the auction proceeds pursuant to the general unjust enrichment doctrine (see, e.g., Supreme Court Decision 2003Da59259, Jun. 24, 2004). Meanwhile, in cases where unjust enrichment is established, the return of the unjust enrichment means returning the profit acquired without any legal ground to the original state. If a third person has already acquired a claim against the third person without any legal ground, the amount he/she has already received the claim and return it, but if the claim has not yet been collected, the loss shall claim the return of the claim to the benefiting person and claim amount (see, etc.).

In the instant auction procedure, on July 18, 2014, the auction court prepared a distribution schedule with the content of distributing KRW 281,472,596 to the Defendant Housing and Urban Guarantee Corporation and KRW 33,390,096 to the Defendant A. Although the Defendant A received the above dividends, the fact that the said dividends to the Defendant Housing and Urban Guarantee Corporation was deposited with the Busan District Court No.5459 in 2014 was as stated in the above basic facts. Thus, the Defendant Housing and Urban Guarantee Corporation was obligated to compel Busan District Court B real estate investment.

Pursuant to the distribution schedule of July 18, 2014 of this case, the above court is obligated to transfer the right to claim a deposit payment of KRW 281,472,596 deposited in gold 5459 of the above court in 2014 and to notify the above assignment of claims to the Republic of Korea. The defendant A is obligated to pay the dividend of KRW 33,390,096 as well as damages for delay calculated at the rate of 15% per annum, which is the date following the delivery of the copy of the complaint of this case, from November 24, 2015 to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be accepted in its entirety on the grounds of its reasoning and shall be decided as per Disposition (On the other hand, in the preparatory documents submitted by the defendant Housing and Urban Guarantee Corporation after the conclusion of pleadings, there is no judgment ordering the cancellation of ownership transfer registration as well as in the judgment ordering the cancellation of ownership transfer registration as to some shares as to the shares acquired by the plaintiff in the auction procedure of this case. Thus, the plaintiff cannot seek a return of unjust enrichment against the defendant Housing and Urban Guarantee Corporation. However, as long as the plaintiff's acquisition of the shares in this case is null and void in the auction procedure of this case, the registration of ownership transfer in the name of the plaintiff with respect to the above shares is not cancelled,