미등기건물의 토지 사용에 따른 부당이득반환의무 부담의 귀속 주체- 대법원 2022. 9. 29. 선고 2018다243133(본소), 2018다243140(반소) 판결*에 대하여 -

Abstract

Korea and Japan are the only countries that treat land and buildings as independent real estate. However, because of such legal principles, it is very important when a person who built a building on land owned by another person acquires ownership of the building. If the owner of the building constructs it without permission, the landowner can claim the demolition of the building and the return of unjust enrichment from the person who occupies the land without permission. However, if the building is transferred without completing registration, it is difficult for the landowner to clearly determine who to make the above claim to. For this reason, the precedent took the attitude that the person who currently occupies the building should return unfair gains through the concept of the de facto disposition right holder. It is a question of whether the above obligations can be recognized even for the first owner who actually sold the building. In addition, the target judgment is clearly concluded on how the above obligation relates to the obligation borne by the de facto disposition right holder. In particular, the target judgment does not clarify who occupies the land between the first owner and the de facto disposition right holder. However, even if possession is recognized on either side, it is reasonable to recognize both sides of the obligation to return unjust enrichment. In addition, I think it is a valid conclusion to view the obligations of the two as untruthful joint and several obligation. The combination of the attitude of precedents that the building owner ideologically occupies the land and the legal principle that the owner is limited to the original acquirer in principle in the case of unregistered buildings will make it difficult for the landowner to specify the Defendant. Considering the interests of the landowner, the attitude of the case law that recognized the responsibility for untruthful joint and several obligation to the parties related to the building can be accepted from a joint purpose perspective, as there may be various aspects of interest in the building.