Plaintiff (Counterclaim Defendant) (Law Firm Jung-do, Attorney Lee Han-cheon, Counsel for defendant-appellant)

Defendant 1 and five others (Law Firm Lee & Lee, Attorneys O Dong-dong, Counsel for the defendant-appellant)

Defendant-Counterclaim Plaintiff (Counterclaim Plaintiff) 2

March 15, 2016

Daejeon District Court Decision 2014Gahap102146, 2015Gahap10197 decided July 1, 2015

1. All appeals filed by the Defendants and the Defendant (Counterclaim Plaintiff) are dismissed.

2. The costs of appeal are assessed against the Defendants and the Defendant-Counterclaim Plaintiff.

1. Purport of claim

(a) Main claim;

The Defendants and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pay each of the following money to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”).

1) Attached Form 1 [Attachment 1](c)(1) and the amount calculated at the rate of 20% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2) From October 29, 2014, the attached Table 1 b. (b) from October 29, 2014 to the date of expiration or loss of ownership of each part of the building listed in the attached Table 1 d. (1) The amount calculated by the ratio of each amount listed in the

(b) Counterclaim;

The Plaintiff shall implement the procedure for the registration of transfer of ownership based on the restoration of real name with respect to each share indicated in attached Table 3(b) of the real estate indicated in attached Table 1 among the real estate indicated in attached Table 1 to Defendant 2 (Counterclaim Plaintiff), Defendant Jinchi Industry Co., Ltd., and Defendant 8.

2. Purport of appeal

A. The purport of the appeal by the Defendants against the principal lawsuit

The part of the judgment of the court of first instance concerning the Defendants shall be revoked. The Plaintiff’s claim against the Defendants shall be dismissed in entirety.

B. Purport of appeal against the counterclaim by the defendant 2, the defendant witness industry corporation, and the defendant 8

The counterclaim of the judgment of the court of first instance shall be revoked. The plaintiff shall implement the procedure for registration of transfer of ownership based on the recovery of real name with respect to each share entered in the column of a site ownership in attached Form 3 B of the attached Table 1 among the real estate indicated in the attached Table 1's real estate indication to the defendant 2, the so-called industry

1. Basic facts

The reasoning for this part of the court's explanation is that the defendant (Counterclaim plaintiff) and the defendants (hereinafter both the defendant (Counterclaim plaintiff and the defendants) are "the defendant" and the defendant (hereinafter referred to as "the defendant") are "the defendant". On the 6th 10th th th th th th th th th th th th th th th th th "Fungdo Construction Co., Ltd." (hereinafter referred to as "comprehensive Construction Co., Ltd.") are the same as the reasons for the judgment of the court of first th th th th th th th th th th th th th th

2. Determination on the main claim

A. Determination on the cause of the claim

1) Establishment of liability for return of unjust enrichment

The owner of a section of exclusive ownership without a right to use site occupies the site of the section of exclusive ownership without any legal ground. As such, he/she obtains unjust enrichment equivalent to the rent for the area corresponding to the portion to be registered as the site ownership of that section of exclusive ownership among the relevant site, and the owner of the share to be registered as the above site ownership suffers from damages equivalent to the same amount, barring any other special circumstances, the owner of the section of exclusive ownership without a right to use site has a duty to return the unjust enrichment to the owner of the said portion of exclusive ownership (see, e.g., Supreme Court Decisions 2010Da72779, Jan. 27, 201; 91Da40177, Jun. 23, 19

The Plaintiff is the owner of the instant land, which is the owner of the share of 507.371/1,657.5 shares. Other co-owners than the Plaintiff of the instant land are the owners of share registered as the site ownership of the said section of exclusive ownership; the Defendants owned or owned the instant section of exclusive ownership on the ground of the instant land as indicated in [Attachment 2]; however, each section of exclusive ownership does not have the right to a site necessary for the possession and use of the instant land as seen earlier. According to the aforementioned facts, the Defendants, the owner of the portion of exclusive ownership without the right to a site use, who is the owner of the said section of exclusive ownership, shall obtain unjust enrichment equivalent to the amount of the charges for the portion corresponding to the portion to be registered as the site ownership of the said section of exclusive ownership; and the Plaintiff, the owner of share to be registered as the said right to a site ownership, who is the owner of the said portion of exclusive ownership, suffered damages equivalent to the said amount. Therefore, the Defendants are obligated to return each of the aforementioned unjust enrichment

2) Scope of return of unjust enrichment

A) According to the result of the commission of appraisal to the Korea Appraisal Board of First Instance, the fees for the size corresponding to the shares to be registered as the site ownership of the relevant section of exclusive ownership during the period in which the Defendants owned the entire part of the instant case are as indicated below the

본문내 포함된 표 순번 피고 전유부분 (층·호수) 감정기간 감정기간 임료(원) 부당이득금 (원) 감정시점 월임료(원) 초일 말일 1 피고 1 1층 □□□호 2006. 5. 10. 2010. 5. 18. 4,898,000 8,014,000 107,000 2010. 5. 19. 2014. 10. 28. 5,565,000 2 피고 2 1층 □□□호 2006. 5. 10. 2010. 5. 18. 4,898,000 7,910,000 5층 ◇◇◇호 2004. 5. 21. 2014. 10. 28. 5,461,000 46,300 3 피고 3 7층 ☆☆☆호 2007. 12. 13. 2014. 10. 28. 2,671,000 2,671,000 32,900 4 피고 4 8층 ▽▽▽호 2008. 9. 8. 2014. 10. 28. 2,380,000 2,380,000 32,900 5 피고 5 8층 ◎◎◎호 2010. 5. 19. 2014. 10. 28. 1,701,000 1,701,000 31,700 6 피고 6(대판: 피고 3) 9층 △△△호 2009. 4. 16. 2014. 10. 28. 1,453,000 726,500 22,600 7 피고 참솔산업 주식회사 9층 ◁◁◁호 2002. 9. 30. 2014. 10. 28. 4,362,000 4,362,000 32,900 8 피고 8 9층 ▷▷▷호 1999. 4. 20. 2014. 10. 28. 5,358,000 5,358,000 32,900 9 피고 9 11층 ♤♤♤♤호 2008. 1. 28. 2014. 10. 28. 2,437,000 2,437,000 31,200

B) Therefore, the Defendants are obligated to pay to the Plaintiff the amount calculated by the ratio of the amount stated in attached Table 1 [Attachment 1](c)(2) to each unjust enrichment described in attached Table 1, delay damages therefrom, and from October 29, 2014 to the expiration date of possession or the date of loss of ownership of each of the entire portion of the Defendants in this case (for Defendant 1, February 16, 2015) (for Defendant 1, February 16, 2015). (2)

B. Determination as to the defendants' assertion

1) Summary of the assertion

A) Since the instant mortgage contract concluded on April 1, 1991 was disposed of by separating the right to use site from the entire part of the instant officetel, which had been established as a sectional ownership at the time of sectional ownership, it is null and void in violation of Article 20(2) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act on the Ownership and Management of Aggregate Buildings”). The Plaintiff who purchased the instant land at the auction procedure commenced on the basis of null and void mortgage is not the genuine owner of the instant land.

B) Even if the instant officetel was not established until the conclusion of the instant mortgage contract, it is evident that, at least, the Plaintiff was divided ownership in the instant officetel until the time the Plaintiff was awarded the bid for the instant land at the auction procedure on April 21, 1994. As long as the Plaintiff’s act of receiving the bid for the instant land in the auction procedure violates Article 20(2) of the Aggregate Buildings Act, and thus becomes null and void, the Plaintiff is not the true owner of the instant land.

C) Therefore, the Plaintiff cannot seek a return of unjust enrichment equivalent to the fees from the Defendants.

2) Determination

A) Relevant legal principles

① In order to establish sectional ownership of one building, there exists one building in an objective and physical aspect, and there is a separate act of distinguishing the physically partitioned part of one building into the object of sectional ownership, as well as the structural and use independence of the separated part of the building. Here, an act of partitioning is a kind of legal act that intends to divide a specific part of a building into the object of sectional ownership without changing the physical form and quality of the building. It is not a special restriction on the timing or method, but it is recognized if the intention of dividing the disposal authority is objectively indicated from the point of view. Therefore, even before the physical completion of a sectional ownership, if it is objectively indicated that a new building will be a sectioned part of a building in the future through a request for building permission or a sale contract for sale, etc., even before the physical completion of the sectional ownership, it can be recognized that the act of partitioning exists, and even if the building is registered in the aggregate building register or has not been registered in the register (see, e.g., Supreme Court en banc Decision 2017Da71578, Jan. 17, 2013).

② Meanwhile, in order to establish sectional ownership, the entire building should be completed as independent from the beginning. Accordingly, it is reasonable to view that a third party acquires the entire building as an object of ownership, considering the entire building that its structure and form is identical to that of its original design and construction permit as one ownership, and accordingly, the building was interrupted due to the owner’s circumstances, and even if the structure had already been completed until it was interrupted, as well as the wall and roof of a part of the floor, and it cannot be seen as an object of land. However, if a third party is to acquire the completed building from the previous owner and transfer it to the extent that it is recognized as identical to that of the construction permit, and the remaining construction continues to exist, it is reasonable to view that the third party acquires the entire building as an object of ownership at the time of discontinuance of construction work among the whole building constructed in accordance with the structure and form of the building for which the construction permit was granted, and that the previous building owner has not been 200 square meters or more at the time of completion of construction permit (see, e.g., Supreme Court Decision 20160 square meters or more.

B) Whether a sectional ownership was established in the instant officetel at the time the contract to establish the instant mortgage was concluded

Based on the above legal principles, comprehensively considering the statements in Eul, Eul's Evidence Nos. 2, 3, 7, 10, and 12 as to the instant case, and the testimony of non-party 1 as witness of the first instance court, the fact that large comprehensive construction was conducted on or before April 1, 191 as of the date of the instant contract by selling the instant officetels to several buyers, which was the date of the instant contract can be acknowledged. Furthermore, in an objective and physical aspect, one building exists, and the divided part of the building is independent in the structure and use of the building, and the defendants' assertion that "Nos. 18, 20, Eul's evidence Nos. 18, 8, 9, 14, 16, 19, 19, and 12, and the testimony of non-party 1 as witness of the first instance court did not appear to have been established on the same 14th floor as of the date of the instant construction permit, and there is no objective and physical evidence to the extent that it was completed.

C) Whether the Plaintiff’s act of acquiring the instant land ownership in the instant auction procedure violates Article 20(2) of the Aggregate Buildings Act and thus becomes null and void

(1) Article 20(2) of the Aggregate Buildings Act provides that a separate disposition is prohibited in cases where it is possible to dispose of the section for exclusive use and the right to use the site together with the section for exclusive use and the right to use the site. Therefore, in cases where two cannot be treated together due to the nature of the decision on commencing the auction, such as the execution of existing mortgage established only on one side, it is possible to separate the section for exclusive use

(2) Based on the above legal principles, the fact that the instant mortgage was established only on the instant land before the instant officetel was divided ownership was established is as seen earlier. Thus, the instant auction procedure for exercising the instant mortgage can be conducted separately from the instant exclusive ownership. Therefore, the Plaintiff’s acquisition of ownership of the instant land in the instant auction procedure is valid. The Defendants’ assertion on this part is without merit.

C. Sub-decision

The Defendants are obligated to pay to the Plaintiff the amount of money listed in attached Table 1 [Attachment 1](C)(2) (the amount shall be calculated by adding up 1/2 equity interest in △△ 1/2 held by Defendant 2 until May 18, 2010 and each land use fee in each of the locations of the locations at issue, which are currently owned by Defendant 2) and the damages for delay calculated at the rate of 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the day following the delivery of a copy of each complaint listed in paragraph (e) to the day of complete payment, and from October 29 to the day of expiration or loss of ownership of the part of the building listed in paragraph (b) of the same Table (in case of Defendant 1, February 16, 2015). ② The Defendants are obligated to pay the amount calculated at the ratio of each amount listed in paragraph (d)(2) of the same Table as the same Table.

3. Determination as to the counterclaim claim filed by Defendants 2, Reference Industry Co., Ltd., and Defendant 8

The reasoning for this part of the court's explanation is as stated in Paragraph 3 of Article 420 of the Civil Procedure Act, which is the same as that of Paragraph 3 of the reasoning of the judgment of the court of first instance.

4. Conclusion

Therefore, the plaintiff's main claim against the defendants of this case is accepted in its reasoning, and all of the counterclaim claims of this case filed by the defendant 2, the defendant witness industry corporation, and the defendant 8 are dismissed without merit, and the court of first instance is justified in its conclusion, and it is so decided as per Disposition.

[Attachment]

Judge Lee Jin-hun (Presiding Judge)