Whether a buyer has the right to possess and use the site of an aggregate building in case where the seller has purchased the site and constructed the aggregate building but did not complete the registration of ownership transfer for the site (affirmative), and whether the right to possess and use the site constitutes "right to use the site" under Article 2 subparagraph 6 of the Multi-Unit Residential Building Act (affirmative)

In the case of a large-scale aggregate building, such as an apartment building, the effect of a sales contract would have the right to possess and use the site as the effect of a sales contract if the constructor of an aggregate building has purchased the site and has not yet completed the registration of ownership transfer even if he/she purchased the site, but has not yet completed the registration of ownership transfer. In such a case, the actual requirements for the acquisition of ownership are met by purchasing the section for exclusive use and the share of the site from the constructor of an aggregate building in the form of sale, and paying the price in full. However, as to the share of the site for exclusive use, a person who has not completed the registration of ownership transfer due to the above reasons has the right to possess and use the site of a building in order to own the section for exclusive use as the effect of a sales contract. Such right to possess and use the site has the right to acquire or acquire the right to acquire the right of exclusive ownership or a person who has acquired the right to use the site from the sectional owner under Article 2 subparagraph 6 of the Multi-Unit Building Act.

Articles 2 subparag. 6 and 20 of the Multi-Unit Residential Building Act, Articles 192(1) and 263 of the Civil Act

Supreme Court en banc Decision 97Da42823 delivered on June 26, 1998 (Gong1998Ha, 1968), Supreme Court Decision 98Da45652, 4569 delivered on November 16, 200 (Gong2001Sang, 39)

Plaintiff (Seoul New Law Firm, Attorneys Kim Young-chul et al., Counsel for the plaintiff-appellant)

Industrial Bank of Korea (Law Firm Il, Attorneys Kim Young-chul et al., Counsel for the plaintiff-appellant)

Hyundai Industrial Development Co., Ltd. and two others

Seoul District Court Decision 99Na61407 delivered on January 7, 2000

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. citing the reasoning of the judgment of the court of first instance, the "right to use the site" under Article 2 subparagraph 6 of the Multi-Unital Building Act (hereinafter referred to as the "multi-unital Building Act") is not necessarily necessary, but at least the right to use the site of the building to own the section of exclusive ownership. Since the seller who purchased the share of the site together with the partitioned building simply does not constitute the right to use the site under the Multi-unital Building Act because it does not constitute the right to use the site under the Multi-unital Building Act, if the parcelling-out company newly constructs the aggregate building and parcels out it in this case, it should purchase the site of the building and complete the registration of ownership transfer to the buyer, regardless of whether the right to use the site has been registered, Defendant 3 could not acquire the right to use the site of the apartment of this case, which was newly constructed by Hyundai Industrial Development Co., Ltd. and Defendant Hyundai Construction Co., Ltd. (hereinafter referred to as the "Defendant Co., Ltd.") from 197 to acquire the right to use the site of this case from 196.

2. In the case of a large-scale aggregate building, such as an apartment building, a lot of land, a delay in the procedure for land substitution, a delay in the decision on share ratio per household, etc. Where only the registration of ownership preservation and the registration of ownership transfer for the section of exclusive ownership has been completed for a considerable period of time, and where the construction of an aggregate building has not yet completed the registration of ownership transfer, it would have the right to occupy and use the site as the validity of a sales contract if the construction of an aggregate building has been transferred the site through the implementation of a sales contract even though the construction of an aggregate building purchased the site and has not yet completed the registration of ownership transfer, and in such a case, it would have the right to acquire ownership by purchasing the section of exclusive ownership and shares from the construction of an aggregate building together with the payment of the price in the form of sale, but the person who has not completed the registration of ownership transfer for the same reason has the right to possess and use the site of a building in order to own the section of exclusive ownership as the validity of a sales contract. This right of possession and use is 260.

According to the facts acknowledged by the court below, the defendant company purchased and delivered a site of an aggregate building from the Korea Land Development Corporation on June 15, 1991, and completed an aggregate building on that ground. However, on January 26, 1994, the replotting procedure under the Partitioning and Rearrangement Projects Act has not been completed, the defendant company made a registration of preservation of ownership as co-ownership of only the part of exclusive ownership of the apartment of this case. After the completion of the above replotting procedure on August 28, 1995, the above replotting procedure was completed on August 6, 1995. In addition, even if the defendant company did not complete the registration of transfer of ownership with respect to the site of an aggregate building purchased from the Korea Land Development Corporation, the defendant company was entitled to possess and use the aggregate building for the purpose of exclusive ownership, and since the right to use the aggregate building was acquired by the defendant company's right to use the land of this case and the plaintiff's right to use the land of this case.

Nevertheless, the court below determined otherwise that Defendant 3 did not acquire the right to use site on the ground that Defendant 3 did not complete the registration of ownership transfer on the site of an aggregate building at the time when the company completed the registration of ownership transfer with respect to a section for exclusive use by Defendant 3. The court below erred by misapprehending the legal principles on the right to use site under Article 2 subparag. 6 of the Aggregate Buildings Act, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out has merit (the Supreme Court Decision 96Da14661 delivered on December 20, 196, which was cited by the court of first instance, was repealed by the en banc Decision 98Da45652, 4569 delivered on November 16, 200).

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating

Justices Park Jae- Jae (Presiding Justice)