연접 대지의 경계를 침범하여 건축된 건물 매수인의 보호 - 대법원 2009. 7. 23. 선고 2009다33570 판결을 중심으로 -

In Korea, there are many cases which the boundary on cadastral register is different from the present status of the land. As a result, we can find that many buildings intrude into adjoining lands. People usually think the boundary of the land in reality is corresponded with the one on cadastral register when they deal in real estate. In real transactions, it is also very exceptional and cumbersome for them to survey the land everytime they deal in. In this situation, the legal principles should be reviewed for the bona fide buyer who purchased the building which infringes on the boundary of adjoining lands to be protected. First of all, the building buyer is able to claim that the real boundary of the land is within the land ownership or the invaded land is acquired due to positive prescription if the land owner demands to tear down the part of the building which is built on his or her own site. The buyer can also claim the seller's liability for warranty if he or she suffers damages from the removal of intruded part of the building. However, the detailed legal principle is arguable whether it is the liability due to ‘deficiency in right’ or the liability due to ‘defects of object’. In this paper, I reviewed the above issues by the case and the character and the range of defense after the remand after reversal related to the effect of the remand.