[제3자이의][공2014하,1451]
In case where the relationship of sectional co-ownership is terminated after the establishment of the right to collateral security on the co-ownership share indicating the sectional co-ownership relation for a specific part of land among one parcel of land, whether the right to collateral security is concentrated on the land divided into the sole ownership of the person who created the
In the so-called sectional co-ownership relationship, in which two or more persons agree to specify the location and area of one parcel of land and register it as co-ownership by sectional owners, the right to collateral security exists on the whole of divided lands according to the percentage of the previous sectional ownership, even if the sectionally owned co-ownership relationship is terminated because the right to collateral security, the object of which is the co-ownership indicating the sectionally owned co-ownership relationship for the specific part of the land among one parcel of land, is established, and the sectionally owned co-ownership relationship is divided into independent lots for each specific part of sectional ownership, and the right to collateral security exists due to mutual transfer of shares between sectional owners.
Articles 103 [title trust], 356, and 357 of the Civil Act
Plaintiff (Law Firm New, Attorney Cho Sung-hoon et al., Counsel for plaintiff-appellant)
Korean Bank (Law Firm LLC, Attorneys Em Young-young et al., Counsel for the defendant-appellant)
Suwon District Court Decision 2010Na37179 decided February 14, 2012
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The grounds of appeal are examined.
1. As to the ground of appeal No. 1, the ground of appeal No. 2
In the so-called sectional co-ownership relationship, in which two or more persons agree to specify the location and area of one parcel of land and register it as co-ownership of the sectional owners, the right to collateral security exists as all divided lands according to the percentage of the previous sectional ownership, even if the sectionally owned co-ownership relationship is terminated due to the establishment of the right to collateral security aimed at co-ownership indicating the sectionally owned co-ownership relationship for the specific part of the land of one parcel of land, and then divided into independent lots by the specific part of the sectional ownership, and the transfer of shares between sectional owners, etc.
In the same purport, the court below is just in rejecting the plaintiff's assertion that the defendant, the mortgagee of the collective security right, was aware of the existence of the sectionally owned co-ownership relation at the time of establishing the right to collateral ownership of the shares of Sejong Mine Co., Ltd. (hereinafter referred to as "three thousand and forty-five square meters of land for a factory ( Address 2 omitted) with a specific sectional ownership at the time of the division, or was aware of the existence of the sectionally owned co-ownership relation at the time of the establishment of the right to collateral ownership of the land for a 15,285 square meters of woodland (hereinafter referred to as "land prior to the division"), which was the collective security right prior to the division, on the ground that it cannot be deemed that the above right to collateral ownership has an effect on only three thousand and forty-5 square meters of land for a factory ( Address 2 omitted) with a specific sectional ownership after the division, and there is no error in the misapprehension of legal principles as to the co-ownership share or the property established in the sectionally
The Supreme Court precedents cited by the plaintiff in the ground of appeal that the court below made a decision contrary to the Supreme Court precedents are different from this case, so the judgment of the court below cannot be said to have made a decision contrary to the Supreme Court precedents.
2. As to the remaining grounds of appeal No. 1
A. Examining the reasoning of the judgment below in light of the records, it is just for the court below to reject the Plaintiff’s assertion that the Defendant agreed at the time of the establishment of the right to collateral security and each sectional owner of the land before the division, including the Plaintiff, to concentrate on the land to be owned individually after the division, without any premise, if the land before the division is divided with each sectional owner of the land before the division. There is no violation of the law of logic and experience in violation of the principle of free evaluation of evidence,
B. Examining the relevant legal principles and records, the court below was just in rejecting the Plaintiff’s assertion of abuse of rights on the grounds that the Defendant’s motion for voluntary auction procedure does not constitute an abuse of rights, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the free evaluation
C. According to the reasoning of the judgment below, the court below recognized that each sectional owner of the land before subdivision, including the plaintiff, has a sectional co-ownership relationship, and determined on the premise that the defendant's right to collateral security was established with respect to sectional co-ownership. Therefore, the remaining grounds of appeal, which alleged that there was an error of failing to exhaust all necessary deliberations in the judgment below,
3. Conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yang Chang-soo (Presiding Justice)