[2] In a case where Gap, etc., who is a sectional owner of an aggregate building, arbitrarily constructs a building or structure which connects the outer wall of the first floor to his own store and uses part of the land which is the site of the building or structure as the site of the building or structure, and exclusively occupies it, the case holding that the judgment below which held otherwise erroneous in the misapprehension of legal principles, since Eul, etc., who is a sectional owner of an aggregate building, can seek delivery of the part of the

Where a sectional owner of an aggregate building under the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Aggregate Buildings") shares a site of an aggregate building, each sectional owner may not exclusively occupy and use the site, barring special circumstances, such as the existence of separate regulations. Therefore, a sectional owner of an aggregate building may seek delivery of the part of the site as a preservation act against another sectional owner who exclusively occupies a part of the site of an aggregate building.

The lower court rejected the Plaintiffs’ claim for extradition of the instant land on the grounds that the Defendants, a sectional owner of the instant building, had a legitimate title to use the entire land of this case, which is the site of the instant building regardless of the ratio of site ownership, and therefore, the Plaintiffs cannot assert that the Defendants’ possession of the instant land was illegal possession because of the question of whether the Defendants used the instant land according to their ordinary usage.

However, it is difficult to accept such judgment of the court below for the following reasons.

According to the reasoning of the judgment below and the record, the Defendants, a sectional owner of the instant building, are aware that they arbitrarily constructed a cement brick structure or a solid form of structure, which is linked to their stores on the outer wall of the first floor of the instant building, and use part of the instant land as the site for the building or structure. In light of the legal principles as seen earlier, barring any special circumstances such as the existence of separate regulations, the Defendants cannot be deemed to have exclusive possession of the parts used as the site for the building or structure among the instant land, and thus, the Plaintiffs, a different sectional owner of the instant building, can seek delivery of the part of the land possessed by the Defendants as the preservation act against the Defendants. The Supreme Court Decision 2002Da16965 Decided December 27, 2002 cited by the judgment below, is inappropriate to be invoked in the instant case as it differs from the instant case.

Nevertheless, the court below rejected the plaintiffs' claim for the delivery of this part of the land solely for the reasons as seen above. The court below erred by misapprehending the legal principles as to the act of preserving jointly owned property, which led to failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal

Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)