In a case where a third party acquires the ownership of a building by carrying out the new construction of a building interrupted at the stage of failure to meet the requirements as an independent real estate, whether a person who lost ownership of a building during the initial construction of a pet, can claim compensation against the original acquisitor (affirmative)

In the event that a third party continues to proceed with the construction of a new building, which is an independent real estate, and the construction of a new building has been suspended in the stage that fails to meet the requirements as an independent real estate, and the ownership of the building has been acquired in the original condition, the person who thereby has lost ownership of the building during the initial construction of a new building may claim compensation for the loss of ownership pursuant to the relevant provisions relating to unjust enrichment against the original acquisitor of the building by applying mutatis mutandis Articles 261, 257 and 259 of the Civil Act.

Articles 257, 259, and 261 of the Civil Act

[Judgment of the court below]

Defendant (Attorney Han-chul et al., Counsel for defendant-appellant)

Daejeon District Court Decision 2008Na11861 Decided September 30, 2009

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

In the event that a third party continues to perform the construction of a new building, which is an independent real estate, which has been suspended at the stage of failing to meet the requirements as an independent real estate, and the ownership of the building was acquired at the original time by continuing the construction, the person who lost ownership of the building during the initial construction may claim compensation for the loss of ownership against the original acquisitor of the building by applying mutatis mutandis Articles 261, 257 and 259 of the Civil Act.

First of all, the lower court acknowledged the fact that the Plaintiff, at the time of the resumption of the construction, purchased the land, etc. of this case from Nonparty 1 and subsequently acquired ownership by the Defendant’s re-execution of the construction work of this case, on the ground that the construction was interrupted due to the failure to pay the construction cost, etc. while the Plaintiff contracted for the construction of the three buildings (hereinafter “the building during the construction of this case”) on the land on the land located in Jil-gun, Jeon-gun, Jeon-gun, Jeon-gun, Jeon-gun (hereinafter “the instant land”). Furthermore, the lower court recognized the fact that the value of the building during the new construction of this case at the time of the resumption of the construction was 5,30 million won as the value of the new construction of this case, not the owner of the building of this case, but the Plaintiff. Ultimately, the lower court determined that the Defendant was liable to return the Plaintiff’s amount of KRW 5,30 million, the equivalent value to the Plaintiff as unjust enrichment.

Examining the records in light of the aforementioned legal principles, the above measures of the court below are just and acceptable. The allegation in the grounds of appeal, namely, that the owner of the building during the new construction of this case is not the plaintiff but the "non-party 2 corporation", or that the building during the new construction of this case was consistent with the land of this case, and thus, the defendant acquired the land of this case and acquired the building in this case, or the plaintiff renounced the right to the building during the new construction of this case, or that the value of the building was erroneously calculated during the new

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)