2016Da32858 (Counterclaim) Confirmation of ownership

Article 4379 (Judgment on Counterclaim)

The Defendant (Counterclaim Plaintiff)’s appeal is dismissed.

The judgment of the court below No. 1-A of the defendant (Counterclaim plaintiff) shall be corrected to the plaintiff (Appointed party, counterclaim defendant) and the selectee (Counterclaim defendant) for the registration procedure for cancellation of ownership transfer registration completed by the Seoul Western District Court No. 43579 on July 28, 1993, which was completed as of July 28, 1993.

1. As to the grounds of appeal by the Plaintiff (Counterclaim Defendant, the designated party, and the Plaintiff hereinafter referred to as the “Plaintiff”) on the grounds of appeal: (a) In order to establish sectional ownership on one unit of building, there must be a separate act that intends to divide the section of the building physically partitioned out of one unit of building into the object of sectional ownership without changing the physical form and quality of the building. Here, the act of partitioning is a kind of legal act that intends to divide a specific part of the building into the object of sectional ownership under the legal concept without changing the physical form and quality of the building, and is not subject to any special restriction on time and method, but is recognized if the intention of the disposal authority is objectively indicated.

Even before the physical completion of a sectioned building, if the intention of division is objectively indicated that the future new building is a sectioned building through an application for building permission or sales contract, etc., it can be recognized that there is a division act.

Meanwhile, corridors, stairs leading to several sections for exclusive use among aggregate buildings and other sections for common use of all or part of sectional owners in the structure of the building cannot be the object of sectional ownership as sections for common use. In this case, unless there is an agreement among the owners who are provided for the common use of all or part of the sectional owners, the objective purpose of the structure of the building is determined.

Therefore, even if the objective purpose of use is changed by arbitrarily altering the section of the building, which is the section for common use, at the time the sectional ownership is established, or the registration of preservation of ownership was made by registering it in the aggregate building ledger as the section for common use, and as a result, the section for common use becomes the object of exclusive ownership of any sectional owner (see Supreme Court Decision 2015Da77212, May 27, 2016).

Meanwhile, a section for common use of an aggregate building belongs to the co-ownership of all sectional owners and can not be the object of sectional ownership unless it is changed to a section for exclusive use. In order to change to a section for exclusive use, a resolution by sectional owners pursuant to Article 15 of the Act on the Ownership and Management of Aggregate Buildings and consent of sectional owners who are specially affected by the change in such section for common use should be obtained. However, if a sectional owner recognizes the completion of the prescriptive acquisition of the section for common use without changing to a section for exclusive use in accordance with such legitimate procedure and recognizes the acquisition of the ownership for that portion, it goes against the purport of the Act on the Ownership and Management of Aggregate Buildings, separate from the section for exclusive use, thereby allowing the disposal of the section for common use and changing the section for common use to a section for exclusive use due to possession during a certain period of time. Therefore, the section for common use of an aggregate building cannot be subject to the acquisition of ownership by prescriptive acquisition (see Supreme Court Decision 201Da7820

B. According to the reasoning of the lower judgment and the record, the following facts are revealed. (1) The Plaintiff and the designated parties are sectional owners who completed registration of preservation of ownership with respect to each section of exclusive ownership of the instant condominium building around October 27, 1976.

(2) Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is a person who directly or indirectly occupies the remainder of the underground room (hereinafter “the part of the underground room of this case”) other than the 72m square meters in which the section of exclusive use is registered from among the 47m square meters of the underground room of this case 491.4m of the aggregate building of this case, with the exception of the 301.72m square meters of the area of exclusive use (hereinafter “the part of the underground room of this case”).

(3) At the time of the building permit and approval for use of the instant aggregate building, the underground part of the instant underground room was designed and constructed for the purpose of guard room, warehouse, elevator, and stairs. Accordingly, the part of the instant underground room is registered in the aggregate building ledger as a section for common use, such as mechanical room and shelter room, and the real estate register is not registered as a separate section for exclusive use. (4) At present, there is a guard room, waste input, elevator, and stairs in the instant underground room, and among them, there is a separate section for exclusive use. (5) The part of the instant underground room at the time of the new construction of the instant aggregate building is exclusively occupied and used by the Defendant as an independent space separate from the outside. (5) The part of the instant underground room at the time of the new construction of the instant aggregate building is subject to sectional ownership.

There is no circumstance that the section of exclusive ownership becomes an application for building permit or is subject to sale.

In addition, since the construction of the instant condominium, it is not confirmed that there was an agreement or a resolution to regard the instant underground room part among the sectional owners as the exclusive ownership which is the object of sectional ownership.

C. Examining these facts in light of the legal principles as seen earlier, it is reasonable to view the instant underground section as a common area designed and constructed for the purpose of the guard room, warehouse, etc. offered for the co-ownership of the occupants for the common purpose of divided ownership from the time of the construction of the instant condominium building.

Even if such section for common use had been remodeled immediately after the construction of a building and used as a space with independence in structure and use, it does not automatically change to the section for exclusive use solely on the ground that it is currently being used with independence, unless there is a separate act to regard it as the section for exclusive use, which is the object of the partitioned ownership. However, in the case of the underground section of this case, there is no evidence to deem that there was an act of classifying the disposal authority from an objective point of view, such as where there was an act of objectively indicating the intention of division by the disposal authority, such as where there was no evidence to acknowledge the sectional ownership in the real estate register or the

Therefore, even if the underground room part of this case is currently used as a space with independence by arbitrarily altering it at present, it is still not subject to acquisition of ownership by prescription as a common area.

D. Nevertheless, the lower court, without conducting necessary deliberation or determination as to whether there was a separate act as to the part of the instant underground room, deemed that the part of the instant underground room does not constitute a common area, the prescriptive acquisition of which is limited solely on the grounds as indicated in its reasoning, and rejected all of the Plaintiff’s claim for return of unjust enrichment equivalent to the Plaintiff’s rent and the claim for delivery of a violation of Article 54.94m of “B” in the part of the instant underground room. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of the exclusive ownership of an aggregate building and on the prescriptive acquisition of common areas, thereby failing to exhaust all necessary deliberations, thereby adversely affecting

2. As to the Defendant’s ground of appeal

For reasons indicated in its holding, the lower court determined that the preservation registration of this case based on a judgment made based on a confession or deemed confession is null and void by means of a registration that does not exist subject to duplicate registration, and that the registration of ownership transfer of this case completed in the future of the Defendant was also null and void by the cause. Accordingly, the lower court dismissed the Defendant’s counterclaim claim seeking the cancellation registration of ownership transfer registration among the Plaintiff’s principal claim in the principal claim, and seeking the confirmation

In light of the relevant legal principles and records, although the reasoning of the lower judgment regarding a counterclaim is somewhat inappropriate, the lower court’s determination is justifiable as a result, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the facts contrary to logical and empirical rules, or by misapprehending the legal principles on the establishment of ownership of underground

3. Conclusion

Therefore, among the judgment of the court below, the part against the plaintiff (the plaintiff's request for extradition against "the annexed drawing" part 3. 96 m2, 'the annexed drawing indication' among the plaintiff's claim) is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is decided as per Disposition by the assent of all participating Justices on the bench, on the ground that there is an obvious clerical error in the judgment of the court below and correction ex officio.

Justices Park Sang-ok

Justices Ansan-chul et al.

Justices Noh Jeong-hee