[2] The case reversing the judgment of the court below ordering an auction on the ground that it is inappropriate for the parties to divide land into kind on the grounds of an agreement on land disposal, etc. although it is possible to divide land in kind in light of the shape, location and size of land, and share ratio between the parties

[2] The case reversing the legal principles as to the method of partition of jointly-owned property on the ground that it is inappropriate for the parties to divide the land into money in kind on the ground that it is not appropriate to divide the sale price by selling the entire land in one lump sum and dividing the sale price according to the share ratio, although it is possible to divide the land in kind in consideration of the form, location and size of the land, the share ratio between the parties, etc.

On the first ground for appeal

In this case where the Plaintiff owned 46.5 m2, 1697 m2, 12, 4666.5 m2, 466.9 m2, Seocho-dong, Seocho-gu, Seoul, and the Plaintiff sought a partition of co-owned property against the remaining co-owners, based on evidence, the lower court held on February 28, 198 that, on the following day, the Defendant purchased the above land from the non-party Seoul Metropolitan Government under a free contract and did not pay the purchase price, and the Plaintiff did not pay the purchase price and completed the registration of ownership transfer under the name of the Defendant on February 29, 198, 71 m20 of the above land. After selling all the above land at one time and divided the sale price according to the share ratio, it is reasonable for the Defendant to immediately pay the amount equivalent to the Defendant’s share among the purchase price paid by the Plaintiff, and the Defendant would be deemed to have agreed to remove the above land under the name of the non-party 2 and the ownership transfer registration of the above land.

However, in the case of dividing the jointly-owned property through a trial, the court is in principle dividing it in kind, and if it is impossible to divide it in kind or if it is possible to divide it in kind, it is possible to divide the proceeds by ordering an auction of the goods (see Supreme Court Decision 93Da27819, Dec. 7, 1993). It is unlawful to order an auction without the above reasons. Although it is possible to divide it in kind in light of the shape and location of the land in this case, the share ratio of the plaintiff and the defendant, etc., but it is not appropriate for the plaintiff and the defendant to divide it in kind with the above agreement as to the disposal, etc. of the land in this case, the above agreement is merely an agreement between the plaintiff and the defendant by acquiring and disposing of the land, and it is not sufficient to deduct expenses and divide them, and on the ground that it is not deemed that the method of dividing the land in this case was an agreement, it is erroneous in the misapprehension of legal principles as to the method of dividing, which affected the conclusion of the judgment.

Therefore, the issue to point this out is with merit.

On the second ground for appeal

In light of the records, it is clear that the defendant, on March 24, 1989, agreed to dispose of the land of this case at KRW 4,300,00 per square year with the plaintiff and there was a person wishing to sell the land of this case at KRW 4,50,000 on the ordinary following day. Thus, it is inappropriate for the court below to state that the plaintiff agreed to dispose of KRW 4,50,000 per square year with the plaintiff, but the decision of the court below is inappropriate, but it appears to the purport of rejecting the agreement itself asserted by the defendant, and considering related evidence, it is acceptable to accept such fact-finding by the court below as just, and it cannot be said that the court below erred in its decision and affected the conclusion.

Therefore, there is no reason to argue that the judgment of the court below is erroneous as the theory of lawsuit.

However, the court below maintained the first instance court that ordered the Defendant to pay the instant money as dividends on the premise that the instant land should be sold by auction and divided into the price. As seen earlier, the part of the claim for payment of the instant money cannot be reversed unless the method of partition of the jointly owned property should be different.

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

Justices Final Young-young (Presiding Justice)