[점포명도][공1983.3.1.(699),349]
One co-owner's exclusive use of the article jointly owned
A co-owner of a real estate can not exclusively use the article jointly owned without consultation, so the Defendant’s exclusive use of the building of this case, which is the co-owned property of the Plaintiff, the Defendant, and the Nonparty, is unlawful unless the majority of co-ownership shares are determined by a resolution.
Articles 265 and 1006 of the Civil Act
Supreme Court Decision 65Da2033 Delivered on April 19, 1966, 78Da695 Delivered on July 11, 1978
[Defendant-Appellee] Plaintiff 1
[Defendant-Appellant] Park Jae-sik, Counsel for defendant-appellant
Seoul High Court Decision 80Na363 delivered on January 16, 1981
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal Nos. 1 and 2 are examined comprehensively.
The judgment of the court below, based on the evidences of the city, found that the deceased non-party 1 was a woman born on (date of birth omitted) (date of birth recognized as a clerical error) (the court below's judgment's judgment's ○○○○○○○) and was married to the non-party 2 (name omitted), whose permanent domicile was located in Pyeongtaek-nam-gun (name omitted), and the defendant, the deceased on January 14, 1979, and the above non-party 3 died on his marriage with the non-party 5, the non-party 6, the non-party 7, the non-party 8, and the non-party 9 and died on January 25, 1978, and judged that the real estate of this case, which was owned by the above deceased non-party 1, was not jointly inherited by the plaintiff, the defendant, and the non-party co-owner, and thus, it cannot be justified.
However, it is stipulated in Article 265 of the Civil Act that the detailed method for the co-owners to use and profit from the common property shall be determined by a majority of co-owners' shares, and the co-owners of the real property shall not use and benefit from the common property exclusively, unless there is such agreement (see Supreme Court Decisions 65Da2033, Apr. 19, 1966; 78Da695, Jul. 11, 1978).
Therefore, as recognized by the court below, even if the building of this case belongs to the plaintiff and the above non-party's co-owned property and the defendant belongs to co-owned share in the building of this case, the exclusive use of the defendant is illegal unless the majority of co-owned shares pass a resolution. Thus, the court below erred in the misapprehension of legal principles as to the management of co-owned property and the non-owned property's possession on the ground that the defendant is a co-owner without any other reason, and according to the records, the court below rejected the plaintiff's claim of this case without any judgment as to this point. The court below rejected the plaintiff's claim of this case without any judgment as to this point. The above illegality has affected the conclusion of the judgment.
Therefore, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court, which is the court below, and it is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Chang-chul (Presiding Justice)