Plaintiff (Appointed Party) (Law Firm Aionion, Attorneys Tae Tae-tae et al., Counsel for the plaintiff-appointed Party)

king Forest Development Co., Ltd. and seven others (Attorneys Lee Won-soo et al., Counsel for the plaintiff-appellant)

Seoul Southern District Court Decision 2007Gahap4449 Decided February 13, 2009

May 13, 2011

1. Of the judgment of the court of first instance, the part against the plaintiffs (appointed parties) and the designated parties corresponding to the money ordered to be paid below shall be revoked.

Defendant 2 shall pay to the Plaintiff (Appointed Party), the amount of KRW 517,776, and KRW 1,110,194, and KRW 216,229 and each of the above amounts to the Appointed 216,229 and KRW 20% per annum from December 11, 2008 to June 10, 201, and the amount of KRW 20% per annum from the next day to the day of full payment. From December 31, 2008 to the time when the Plaintiff (Appointed Party) and the Appointed 2 (Non-Party 2) lose ownership of KRW 3,729,00,000, KRW 3729,000 per annum, or until Defendant 2 loses ownership of Section 4,729,000 among the above buildings on the ground, to the Plaintiff (Appointed Party and the Appointed Party 4,000, KRW 364,294,00 each month from the next day to the day of full payment.

2. All appeals by the Plaintiff (Appointeds) and the designated parties against Defendant 2, other than the remaining appeals and Defendant 2, are dismissed.

3. Of the total litigation cost incurred between the Plaintiff (Appointed) and the appointed parties and Defendant 2, 1/4 are borne by the Plaintiff (Appointed Party) and the remainder by the said Defendant, respectively, and the remainder by the Plaintiff (Appointed Party) and the appointed parties, other than Defendant 2, are borne by the Plaintiff (Appointed Party).

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the court of first instance is revoked. The defendants listed in the attached Table 2 "owner" shall be revoked. The defendants shall pay 20% interest per annum to each of the following day from the date of delivery of the copy of the application for modification of the claim(s) as of December 5, 2008 to the plaintiff (the appointed party, hereinafter the "Plaintiff") and 2 of each claim(s) stated in the "amount 1" of each of the same list(s) and 3 of the same list(s) and each of the above money(s) stated in the "amount 2" of the same list(s) and each of the above money(s) to the designated parties: (2) from December 31, 2008 to December 31, 2008 to the time when the plaintiff and the designated parties lose their ownership in the share of the above building(s) 3,729m29m2 or the defendants lose their ownership in the above above above building(s) to the plaintiff and 2 of the designated parties.

1. Basic facts

A. On the ground of the area of 3,739 square meters (hereinafter “instant land”). The building (building name omitted) is constructed on the ground of Yeongdeungpo-gu Seoul Metropolitan Government (hereinafter “instant land”). The Defendants owned the section for exclusive use indicated in the “Dongho Lake” and “building area” in the attached Table 2 among the instant buildings, and the remaining Defendants except Defendant 2 and 7 (Defendant 5 of the judgment of the Supreme Court) own the site of the instant building according to the share indicated in the “building area” column in the same list.

B. On July 27, 1987, the land register of this case states that the registration of ownership in the name of Nonparty 6 (3.05/3,739), Nonparty 3 (132.23/3,739), Defendant 7 (16.03/3,739), and each registration of ownership in the name of Nonparty 6 (3.05/3,739), and each registration of ownership in the remaining co-ownership shares (3,557.69/3,739) except the above shares, are completed.

C. However, if the share of the right to a site stated in the instant building register is fully added, the aggregate of the share is 3,612.01/3,739 shares. It is inconsistent with the share of 3,557.69/3,739 shares, which is the aggregate of the share of the right to a site registration on the instant land register.

D. Meanwhile, on July 19, 2005, the Plaintiff and the Appointed 2 completed the registration of ownership transfer on July 25, 2005 with respect to the share of Nonparty 3 (132.23/3,739), each of which is one-half share, 66.15/3,739, each of which is one-half share. On October 28, 2005, the Selection 3 acquired the share of Nonparty 6 (3.05/3,739) through a public auction jointly with Nonparty 5, and completed the registration of ownership transfer in its name on November 4, 2005.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3-1 to 152, Eul evidence 4-1 to 3, the purport of the whole pleadings

2. Determination as to the claim against Defendant 2

A. Determination on the cause of the claim

A sectional owner of an aggregate building without a right to a site has illegally occupied the site of an aggregate building without any legal ground. A sectional owner of an aggregate building due to the above illegal possession gains unjust enrichment equivalent to the rent for the area corresponding to the portion to be registered as a site of his own building among the sites of an aggregate building. The owners of the shares not a right to a site have suffered damages equivalent to the same amount (see Supreme Court Decision 91Da40177 delivered on June 23, 1992).

In full view of the above evidence and the overall purport of evidence as to this case, it can be acknowledged that Defendant 2 acquired the ownership of the building on September 13, 1979 among the building of this case, but did not acquire the ownership of the land of this case or the ownership of the building of this case. The above Defendant paid KRW 592,418 to the Plaintiff on June 5, 2007 as the price for the use of the ownership of the building of this case until the time. According to the above facts, the above Defendant without the ownership is illegally occupying the site of this case without any legal ground. The above Defendant obtained unjust enrichment equivalent to the rent for the area corresponding to the portion that should be registered as the ownership of the building of this case among the building of this case. Since the above illegal possession, it is reasonable to view that the above Defendant had already acquired the ownership of the building of this case as the ownership of the building of this case on September 13, 1979, the Plaintiff and the designated parties (hereinafter referred to as the “Plaintiff, etc.”), which are the owners of unregistered shares, as to the ownership of this case, within 206 years under the customary law.

B. Determination on Defendant 2’s assertion

(1) The registration of transfer of land shares in the name of the plaintiff et al. is already made for the shares in the land sold in lots to other buyers in the future, and it is not consistent with the actual relation. It is alleged that the act of double sale in breach of trust by the seller of a commercial building constitutes double sale of the shares in the land already disposed of, and thus null and void since it is acquired as a result of active participation with the knowledge of the fact. Thus, as follows, although the sum of the shares in the land on the register of the building in this case is inconsistent with the sum of the shares in the site on the register of the land in this case and the shares in this case are recorded as the completion of the ownership registration on the register of the land in this case, there still exists a share in the land on the register of the land in this case (181.31/3739). The area of the land in this case is more than 126.9 square meters than the aggregate of the ownership in the register of the building in this case, and the above defendant did not acquire the share in this case or the ownership on the building in this case.

(2) Since Defendant 2 purchased the pertinent building and the pertinent site and occupied the relevant site in a peaceful manner with the intent to own it in full, the prescriptive acquisition period was completed, and the Plaintiff et al. constitutes a malicious person who acquired bad faith after the completion of the prescriptive acquisition period, and thus, it is a position to cancel the registration thereof. The Plaintiff et al. asserted to the purport that it is improper to claim rent to the above Defendant. However, as seen earlier, the above Defendant did not acquire the ownership of the instant land or the right to site of the instant building, and therefore, the above Defendant’s assertion on this part is without merit, premised on the fact that the said Defendant occupied the relevant site with the intent to own it.

(3) According to the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 3725, Apr. 10, 1984; hereinafter "former Aggregate Buildings Act"), the plaintiff et al. claims that the ownership of part of the land of this case is null and void. Thus, in full view of the circumstances and the purport of the whole pleadings recognized earlier, the provisions of Articles 20 (Indivisibility of Section 4 and Right to Use Site) through 22 (Non-Application of Article 267 of the Civil Act) concerning the existing section for exclusive use and the right to use site thereof at the time of the enforcement of the above Act shall apply from April 10, 1987. However, in light of the above circumstances, it cannot be deemed that the former Aggregate Buildings Act applies to the above defendant, and in light of the above circumstances, the above part of the defendant's assertion is without merit.

(4) The above defendant acquired legal superficies under the customary law on the entire site of this case, and the plaintiff et al. had a burden on the ownership of the building of this case from the time when the registration of transfer of the land share was awarded to the plaintiff et al., and thus, the plaintiff et al.'s claim for unjust enrichment against the above defendant cannot be permitted under the good faith principle. Thus, the plaintiff et al.'s claim for unjust enrichment was asserted to the purport that it is not permissible under the good faith principle. Thus, even if the legal superficies under the customary law, which can refuse the claim for removal of the building by the owner of the land, even if the legal superficies is the owner of the land, the benefit accrued from the possession and use of the land, as unjust enrichment, shall be returned to the owner of the land (see

(5) The Plaintiff et al.’s share of land is merely a share of land with a burden of statutory superficies that cannot be removed according to the current situation. It is alleged to the purport that it is unreasonable to claim rent based on the site without a building. Thus, in a case where the owner of a building located on another’s land occupies the land without any legal cause and calculates the amount of unjust enrichment equivalent to the rent of the land that is to be returned to the owner of the land, barring any special circumstance, the circumstance where the right to use the land is restricted due to the use of the building on the land is located (see, e.g., Supreme Court Decision 88Meu18504, Aug. 8, 1989). Thus, this part of the Defendant’

C. Sub-decision

Therefore, Defendant 2 shall return unjust enrichment to the Plaintiff at the rate of 517,76 won (1,10,194 won from July 19, 2005 to November 30, 2008 - 592,418 won), and 1,110,194 won (the amount equivalent to the rent from July 19, 2005 to November 30, 2008), 216,29 won (the amount equivalent to the rent from October 30, 2005 to November 30, 2008) and 1,110,194 won (the amount equivalent to the rent from the day after November 28, 2005 to the day after November 30, 2008) and each of the above funds shall be paid to the Plaintiff at the rate of 216,29% (the amount equivalent to the rent from the day after 2008 to November 30, 2008).

3. Determination as to claims against the Defendants other than Defendant 2

A. The plaintiff's assertion

The instant land consists of the parts that were the object of the site ownership of the instant building and the remaining parts thereof, and the Plaintiff et al. acquired ownership of some of the remaining parts of the said part, thereby becoming co-owners of the instant site. Since the said Defendants excluded the Plaintiff et al. and used and profit-making from the part exceeding the above Defendants’ share among the instant site, the said Defendants seek payment of the amount equivalent to the rent for the Plaintiff et al.’s share out of the instant site due to unjust enrichment from the use and profit-making.

B. Determination

Where the sectional owners of one building own the site of the building, each sectional owner has a legitimate right to use the whole site of the building according to the purpose of use, regardless of the share of co-ownership in the site, unless there are special circumstances such as the existence of separate regulations (see Supreme Court Decision 93Da60144, Mar. 14, 1995).

In this case, according to the above recognition, the above defendants (excluding defendant 7) owned the right to a site on their own building among the buildings of this case as stated in the "ratio of Site Right" listed in attached Table 2, and defendant 7 did not own the right to a site of this case but owned the right to a site of this case. Thus, if the above legal principles were followed, the above defendants have a legitimate right to use all the site of this case according to the use of the site of this case, regardless of the proportion of co-ownership in the site of this case, unless there are special circumstances, such as the existence of separate regulations, etc., and there was no assertion or evidence against the above special circumstances. Thus, the plaintiff et al.'s claim of this part of this case of this case by the plaintiff et al. of this case did not have any further reasons.

4. Conclusion

Therefore, the plaintiff et al.'s claim against the defendant 2 shall be accepted within the scope of the above recognition, and the remaining claims against the defendants except the defendant 2 and defendant 2 shall be dismissed in its entirety as there is no ground. Among the judgment of the court of first instance, the part against the plaintiff who ordered the above payment to the defendant 2 is unfair in its conclusion, and thus, it is revoked, and the payment of the above money is ordered to the defendant 2, and the remaining appeals against the defendant 2 except the plaintiff et al.'s remaining appeal against the defendant 2 and the defendant 2 are dismissed in its entirety. It is so decided as per Disposition.

[Attachment Selection List, Omission of List 2]

Judges Kim Yong-maid (Presiding Judge)