[2] The case holding that, in a lawsuit for partition of co-owned property, where the division is made in kind in the manner that one of the economic utility parts of the division is set up on the road, even though only a specific part of the object to be divided is connected to the road and has high economic utility value in comparison with other parts, the economic value shall be divided in proportion to the ratio of shares, and where the object is designated as a commercial area, and where the object is divided in kind in kind, and if the building site area of the commercial area is less than the minimum

[2] The case holding that, in a lawsuit for partition of co-owned property, where the division is made in kind in the manner that one of the economic utility values of the division part is set up on the road, even though only a specific part of the object to be divided is abutting on the road and compared with other parts, it shall be divided in accordance with the ratio of shares by adjusting the size of the divided part or adjusting the economic excess or value of the money, and where the object is designated as a commercial area and it is divided in kind, if either of the parts to be divided is less than the minimum size of the building site area of the commercial area under the Building

1. According to the reasoning of the judgment of the court below, the court below, based on the evidence adopted in its judgment, found that the plaintiff and the defendants shared the land of this case 218.3 square meters in proportion to 86.5: 131.8. The plaintiff and the defendants did not reach an agreement as to the method of partition of the land of this case. In light of the location, size, surrounding circumstances, use value and profit-making status of the land of this case, the relationship between the plaintiff and the defendants and their co-ownership share ratio, etc., the court below determined that it is reasonable to divide the part 86.5 square meters in addition to the attached drawing of the judgment of the court below among the land of this case into the plaintiff and the part 131.8 square meters in proportion to the above 131.8 square meters in proportion to the land of this case.

2. In a lawsuit for partition of co-owned property, the court shall issue an order for division according to the share ratio in a reasonable way, taking into account the co-ownership relation or the overall situation of the property which is the object thereof, and in principle, the share ratio refers to the share ratio of the value according to the share ratio. If the shape, location, situation of use or economic value of the object to be partitioned is not equal, in principle, the economic value should be adjusted according to the share ratio and order for division (see, e.g., Supreme Court Decisions 92Da39105, Nov. 10, 1992; 93Da13445, Aug. 27, 1993). In addition, the partition of co-owned property by judgment shall be based on the method of in-kind division. However, even if it is impossible in kind or possible, if the price is considerably decreased due to such division, the auction price of the co-owned property should be divided, so-called "the price of co-owned property shall be remarkably decreased by 10."

3. However, according to the records, the land of this case is located in the commercial zone located in the 4th line adjacent to the 0th parallel road in the 0th parallel of the 0th parallel of the 0th parallel of the 0th parallel of the road, and only the north side of the 3th parallel of the 0th parallel of the 0th parallel of the 0th parallel of the 0th parallel of the road, and the remaining 3rd side of the 3rd side is surrounded by another adjacent land. Thus, if the part adjacent to the road of this case among the land of this case is divided in such a way that the 4th parallel of the 0th parallel of the 0th parallel of the 0th parallel of the 0th parallel of the 0th parallel of the road, and it is obvious that the 4th parallel of the 0th parallel of the land of this case would have a greater economic utility value compared to other parts, it shall be ordered to divide in such a way as to adjust the size of the Defendants or to adjust the economic value in cash.

Meanwhile, according to the records, since the land of this case is a site and its land category and current status in the public register are located in the commercial zone located in the vicinity of the 4th road adjacent to the river basin and its specific use area under the Urban Planning Act is likely to be designated as a commercial area. Since Article 49(1) of the Building Act and Article 80(1) of the Enforcement Decree of the same Act provide that the building site area in the commercial area shall be at least 150 square meters, the building site area in this case shall be at least 150 square meters. Thus, if the land use in this case is designated as a commercial area, it is impossible to construct a building on the land because either of the land site area in the commercial area is less than the minimum area of the building site in the commercial area, and in this case, it is apparent that the value of the portion impossible to construct a building on the land due to such division will be significantly reduced than the value of the building before the division, the land in this case shall not be divided in kind, but shall be divided by the so-called price division.

Nevertheless, the court below held that the economic value of the portion divided into the Plaintiff and owned by the Defendants exceeds its share ratio by dividing the portion of 131.8 square meters as owned by the Plaintiff’s owner, “B” in the attached drawings attached to the judgment below, and “B” portion of 86.5 square meters as owned by the Defendants, and “B” portion of 131.8 square meters as owned by the Defendants. However, without examining whether to designate a specific use area under the Urban Planning Act of the land in this case and its contents, the court below ordered the spot partition of the land in this case and did not complete deliberation by misapprehending the legal principles

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)