공유물분할
1. The amount of real estate listed in the separate sheet remaining after the cost of auction is deducted from the proceeds of auction;
1. Determination as to the cause of claim
A. Comprehensively taking account of the overall purport of the pleadings and arguments as to the descriptions or videos in Gap evidence Nos. 1 through 3, the plaintiff and the defendants owned the share of 209.5/838 of the real estate listed in the separate sheet (hereinafter “the road of this case”), ② the road of this case is offered as the passage of each of the above buildings as the roads connected to five roads adjacent thereto, which are connected to the five roads, and ③ the plaintiff, on March 30, 2016, demanded the defendants to divide the jointly owned property since acquired the ownership of the share of 209.5/838 of the instant real estate through the auction procedure, but the agreement on the division of the jointly owned property has not been reached up to now.
B. The plaintiff asserts that the road of this case is put up for auction, not in kind division, and the price shall be divided in proportion to shares.
According to the facts of recognition as above, the Plaintiff, one of the co-owners of the instant road, may claim the division against the Defendants, who are other co-owners, at any time, unless there are special circumstances.
As seen earlier, the agreement on the division of co-owned property with the Defendants was not reached.
However, in principle, the division of a co-owned property by a trial shall be carried out in kind as long as the co-owners can make a reasonable division according to their shares. However, the requirement of “undivided in kind” is not physically strict, but physically strict interpretation. It includes cases where it is difficult or inappropriate to divide a co-owned property in kind in light of the nature, location, area, and use situation of the co-owned property, the value of use after the division, etc.
Therefore, it is not physically impossible to divide the instant road in kind (see Supreme Court Decision 2002Da4580, Apr. 12, 2002), but it is provided for its own utility as the passage of the five buildings adjacent to the instant road, as seen earlier.