[건물명도청구사건][고집1980민(1),5]
Use, Profit-making of Common Property
Matters concerning the use, profit-making, etc. of the co-owners shall be determined by a majority of the co-owners' shares, and unless otherwise agreed by the co-owners, one of the co-owners may not exclusively use, exclusively use, or benefit from part of the co-owners' property.
Articles 263 and 265 of the Civil Act
Supreme Court Decision 72Da1814 delivered on December 12, 1972 (Supreme Court Decision 203No342 delivered on December 12, 1972)
Plaintiff 1 and 45 others
Defendant
Yeongdeungpo Branch Court of Seoul District Court (78 Gohap675, 79 Gohap288)
The appeal is dismissed.
Expenses for appeal shall be borne by the defendant.
The plaintiffs sought a judgment against the plaintiffs to order the plaintiffs to indicate the 106 square meters of 106 square meters of 5 square meters of 106 square meters of 5 square meters of 106 square meters of 2nd and 106 square meters of 3rd and 4 square meters of 106 square meters of 3rd and 5 square meters of 4th, and the 5th and 106 square meters of 5th and 106 square meters of 5th, the underground room 9 square meters of 99 square meters of 4th and 34 square meters of the underground room.
The defendant shall revoke the original judgment.
The plaintiffs' claim is dismissed.
According to the statement of 10 evidence, among the buildings stated in the purport of the claim, the fact that the 99th underground level of the above building was completed by sharing 77 persons including the plaintiffs and the defendant, and the fact that the defendant is occupying and using the 34th grade of the attached drawing "B" of the above building is no dispute between the parties, and that there was no agreement among the co-owners on the profits from the use of the common property on the above registry is the defendant.
Therefore, it is presumed that the 99th underground room of the building stated in the purport of the claim is presumed to be a co-ownership of 78 square meters including the original and the defendant, so the defendant, only one of the co-owners, cannot use exclusively or exclusively the underground room of the above recognition, and therefore, the plaintiffs, who are co-owners of the above underground room, have a duty to specify it as a preservation act, so long as they seek such intention.
The defendant purchased shares in the above 78 units under the name of the non-party 1 and the non-party 1 and purchased shares in the above 78 units, with the exception of the non-party 1 and the non-party 2's initial co-ownership shares in the above 78 units, and then the non-party 1 and the non-party 3's new shares in the above 1 and 90, the non-party 1 and 10, the non-party 1 and 4's 7, and the non-party 9's new shares in the above 1 and the non-party 2's new shares in the non-party 1 and the non-party 9's new shares in the non-party 1 and the non-party 2's new shares in the non-party 1 and the non-party 1 and the non-party 2's new shares in the non-party 1 and the non-party 3's new shares in the above 9-party 1 and 9's new shares.
Second, the defendant himself is also a co-owner of 10/90 on the underground part of the case's underground part, and therefore he can use the above underground part at the ratio of shares without the consent of other co-owners. Since co-owners cannot dispose of or change the co-ownership without the consent of other co-owners, the plaintiff's claim seeking such intention is unjustifiable. Thus, the matters concerning the management of the original co-ownership such as profits from the use of the co-ownership shall be determined as a majority of co-owners' share, and even if part of the co-ownership is co-ownership, it shall not be exclusively and exclusively used. As seen above, the defendant cannot use the underground part of the case's underground part exclusively and exclusively for the use of the underground part of the case's underground part. Thus, the defendant's claim for this case cannot be rejected on the ground that he is one of the co-owner's co-owner's right to own share. Thus, the defendant's argument is without merit.
Therefore, the claim for this case against the plaintiffs, who are co-owners of the underground part of this case's underground part of the co-owners of this case's underground part of the above 34 cases' underground part of the above 34 cases' common property, is justified, and therefore, the decision of the court below with the above conclusion is just, and the defendant's appeal is without merit, and the appeal costs are assessed against the defendant who has lost the property.
Judges Jeon Byung-hun (Presiding Judge)