미등기건물의 대지 무단점유로 인한 부당이득반환의무 - 대법원 2022. 9. 29. 선고 2018다243133, 243140 판결 -

Abstract

The Supreme Court of South Korea (hereinafter referred to as “the Court”) has stated as follows : “A person who owns a building on land owned by another without any legal authority to do so is considered to be occupying the land for the purpose of owning the building, even if they do not physically occupy the building or the land. The owner of the building has an obligation to reverse any unjust enrichment to the landowner, unless there are special circumstances. If a person acquires an unregistered building and obtains de facto disposal rights over the building, he can also be considered to be occupying the land. In such cases, both the original acquirer of the unregistered building and the person with de facto disposal rights are obligated to reverse any unjust enrichment resulting from the use and occupation of the land to the landowner as an obligation in solidum.” However, the Court did not provide a detailed explanation of the legal basis for the above conclusion. While supporting the conclusion of the Court's decision, I have discussed from the perspective of enrichment claim based on interference with a right of the claimant whether the original acquirer of an unregistered building and the de facto disposers of the unregistered building, who occupy the land can be considered as occupants of the land on which the unregistered building is situated. I concluded that the original acquirer of the unregistered building, the intermediary transferor, and the current holder of the de facto disposal rights of the unregistered building each bear different extents of the obligation to reverse unjust enrichment to the landowner. Furthermore, it was recognized that the original acquirer of the unregistered building, as the legal owner of the unregistered building, has the authority to engage in acts such as double sales or other disposals. Similarly, the intermediary transferor also has the authority to complete the registration process and transfer ownership of the real estate to a third party through a double sale after completing their own registration process. Therefore, during the period following the transfer of the de facto disposal rights of the unregistered building to the transferee, both the original acquirer of the unregistered building and the intermediary transferor bear the obligation to reverse any unjust enrichment due to their occupation of the land, which constitutes an infringement on the ownership rights of the landowner. The original acquirer of the unregistered building, the intermediary transferor, and the final holder of the de facto disposal rights of the unregistered building have different ranges of obligation to reverse unjust enrichment to the landowner, and there may be some overlapping parts between their obligations, which creates an obligation in solidum.