B. In the partition of co-owned property by trial, the principle of spot division and the meaning of “if it is impossible to divide in kind or in kind, it might be considerably reduced in value if it is not possible to divide in kind or in kind”

(c) Measures to be taken by the court where it is inappropriate to divide the article jointly owned in kind by the nature of the "action for partition" and the method that the claimant for partition wishes or the value thereof is likely to decrease substantially;

(d) The method of dividing the excess or excess of the economic value between the co-owners in money and the method of dividing it in kind only within the limit of share of the person requesting a partition, and the remaining method of dividing it into co-owners (affirmative);

(e)the meaning of “in accordance with the ratio of co-ownership” as the standard for the division of co-owned property in kind and the division of land;

B. As a matter of principle, division of co-owned property by judgment shall be conducted in kind as long as a reasonable partition can be made according to each co-owner's share. In the payment division, the requirement that "shall not be divided in kind" should not be physically strict interpretation, but should include cases where it is difficult or inappropriate to conduct division in kind in light of the nature, location, size, utilization situation, and use value after the division, etc. of the co-owner's share, and it also includes cases where "the value of the portion to be owned by the division in kind might be significantly reduced if the division is made in kind." Even if the co-owner's share is a person, it includes cases where the value of the portion to be owned by the division in kind might be significantly reduced than the share value before the division.

C. Lawsuit for partition is a lawsuit for the formation of partition, and the court may divide the co-owned property in a reasonable manner with free discretion without being able to seek by the person who made the partition. Thus, it is not possible for the claimant to divide the co-owned property in kind according to the method that the co-owned property is not appropriate or according to this method, on the ground that it is apprehended that the value might be significantly decreased, and it is also possible for the court to order the division in kind according to other methods if it is possible to divide the co-owned property in kind.

(d) If certain requirements are met, it is permitted to divide between co-owners by adjusting the excess or excess of the economic value of money in cash. If the goods jointly owned by many people are divided in kind, it is allowed to divide in kind within the limit of shares of the claimant for partition and the remaining co-owners who do not want the division may also be allowed to leave as co-owners.

E. The method of dividing land in kind can be reasonably divided according to the ratio of shares of co-owners according to the court's free discretion, depending on the situation of co-ownership or the object of the division. Since it is reasonable to view that the ratio of co-ownership is equivalent to the ratio of the value according to the share of co-owners, in principle, the size of land acquired by each co-owner should be equal to the ratio of the share of co-owner, in a case of dividing land. However, it is allowed to divide the economic value in proportion to the share of shares if the form, location, use or economic value of the land is not equal, but is not equal.

1. According to the reasoning of the judgment below, with respect to the instant forest land owned by the plaintiff and the defendants [the Gyeonggi-gun (resident address omitted) 46,909 square meters], the plaintiff was required to divide the instant forest land in kind as stated in the purport of the claim. However, while the lower part of the instant forest land is adjacent to farmland, while the lower part of the instant forest land was a valley, and the lower part was formed with a perfect slope from the lower part of the instant forest land to the suspension part, but the lower part was formed with a very rapid slope from the lower part of the instant forest land, and there is a significant difference in its usage degree depending on the location of the instant forest land, and accordingly, it is difficult to divide it in kind according to the share ratio between the plaintiff and the defendant, and if it is divided in kind, it is recognized that there is a concern that the economic value of some co-owners might remarkably decrease in the sale price of the instant forest land, the lower court determined that the remaining amount of the auction price should be deducted from each of the Defendant’s share.

2. The co-ownership of the article is divided into one form of co-ownership of the article and belongs to several persons. Unless there are special circumstances, each co-owner has a unilateral right to abolish the existing co-ownership relationship by filing a claim for partition of the article jointly owned and to realize the legal relationship of distributing the article among the co-owners (the freedom of partition of the article jointly owned). Therefore, if the co-ownership is divided into the article jointly owned by a trial because the parties did not reach an agreement, the court can choose the method at will, but if the article jointly owned is divided by the trial, the court can divide the article in kind in principle, and if it is not possible to divide the article in kind or if it is possible to divide it into the article in kind, the auction of the article may be ordered only when the value thereof is likely to decrease significantly (

Of course, the requirement that it is impossible to divide in kind does not physically strictly interpret it, but it includes cases where it is difficult or inappropriate to divide in kind in light of the nature, location, size, use status, and use value of the common property after the division. It also includes cases where the value of the property might be significantly reduced if the division in kind is made in kind. It also includes cases where, even a co-owner, the value of the part to be owned independently by the division in kind might be significantly reduced compared to the share value of the property before the division (see Supreme Court Decision 84Meu194, Feb. 26, 1985). However, even if so, it is a principle that the division in kind by a trial is made in kind as long as each co-owner's share can be reasonably divided.

3. Therefore, a lawsuit for partition of co-owned property is instituted, and the court can divide the co-owned property in a reasonable manner with free discretion without being able to seek a plaintiff's claim. Thus, it is not ordered to make the partition in kind according to the method that the plaintiff would not immediately order the payment in installments on the ground that it is inappropriate or according to this method, the value would be significantly reduced, and if it is possible to make a reasonable installment in kind by other methods, the court may order the installment in kind according to such method.

In the event that certain requirements are met, a party member has determined that division is permitted between co-owners by adjusting the excess or excess of the economic value in cash (see, e.g., Supreme Court Decision 90Meu7620, Aug. 28, 1990). If a group of goods jointly owned by many people is divided in kind, the remaining co-owners who do not wish to divide in kind within the limit of shares of the party member who requested the division and who do not want to divide in lots (the Defendants do not so in this case) can also be permitted.

4. In the lawsuit for partition of co-owned property, the court held that the co-owned property is divided into several goods according to the ratio of shares of each co-owner and that each co-owner's sole ownership is recognized for the divided property. The method of partition can be reasonably divided according to the co-owner's share ratio according to the court's free discretion according to the co-ownership relation or all the circumstances of the property which is the object. Here, it is reasonable to regard the share ratio as meaning the value ratio according to the share ratio.

Therefore, in the case of land partitioning, in principle, the size of the land acquired by each co-owner should be equal to the ratio of the co-owner's share. However, if the form, location, the use condition, or the economic value of the land is not equal, it is also allowed to divide the economic value into the proportion of shares in consideration of all such circumstances.

5. According to the facts established by the court below, the plaintiff and defendant 1 are 1/4 of co-ownership shares in the forest of this case and defendant 2/4 of them are 46,909 square meters and the forest of this case is larger than 46,909 square meters. In light of the shape of the forest of this case as indicated in the annexed drawing of the court below, it is hard to accept the judgment of the court below that only the circumstances cited by the court below are hard to divide it in kind or that the value of the forest of this case might be significantly reduced if it is divided in kind.

6. The lower court should re-examine whether it is possible to divide the instant forest by kind in consideration of all the circumstances, such as the situation of standing timber on the instant forest, namely, the economic value thereof, and the utilization relationship between the original and the Defendant regarding the instant forest.

7. Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the partition of co-owned property by judgment, and it is so decided as per Disposition.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)