[점유방해금지][공1993.5.1.(943),1151]
A. Requirements for a part of the building to become the object of sectional ownership (=a structural independence)
(b) The case holding that the registration of partitioned ownership is null and void on the ground that there is no facility to separate or isolate from other parts at the time of application for registration and there is no facility to be provided for the purpose as an independent building, among the 109 square meters of underground floor and the 19.83 square meters of underground floor and the 5-story building;
A. In order for a part of a building to be the object of sectional ownership to be the object of sectional ownership, the said part must be separated from other parts in structure or use. Although the degree of structural independence can vary depending on the situation or use mode of the house, shop, garage, etc. of the building, the structural independence is required because it is necessary to clarify the scope of physical control over the object which mainly becomes the object of sectional ownership. Therefore, if the scope of the object of sectional ownership cannot be determined by structural division, the structural independence cannot be said to exist.
(b) The case holding that the registration of partitioned ownership is null and void on the ground that there is no facility that can be separated and isolated from other parts at the time of application for registration, and there is no facility that can be provided for the purpose as an independent building, among the area of 109 square meters and 837.65 square meters in the underground room of the 1st and 5th ground-based building;
Article 215 of the Civil Code, Article 1 of the Multi-Unit Residential Building Act
A. Supreme Court Decision 81Da317 delivered on June 14, 1983 (Gong1983, 1074) (Gong1983, 1074). 92Da3151 delivered on April 24, 1992 (Gong1992, 1685). Supreme Court Decision 92Da4390, 4406 delivered on April 24, 1992 (Gong1992, 168), Supreme Court Decision 90Da4027 delivered on July 13, 1990 (Gong190, 1702)
[Defendant-Appellee] Plaintiff 1 et al.
Defendant 1 and one other
Seoul Civil District Court Decision 91Na18827 delivered on July 31, 1992
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
In order for a part of a building to be the object of sectional ownership to be the object of sectional ownership, the part must be independent from other parts in structure or use (see, e.g., Supreme Court Decision 92Da3151, Apr. 24, 1992; Supreme Court Decision 81Da3151, Jun. 14, 1983; 81Da317, Jun. 14, 1983; 81Da317, Jun. 14, 1983).
According to the records, since there was no fixed boundary sign or a facility capable of being separated from other parts at the time of applying for registration as to 109 square meters of underground room 837.65 square meters of a building with 19.83 square meters of the ground surface of this case, which is used as a commercial building of this case, and there was a difference in the size, location, horizontal and vertical length of the portion possessed by the plaintiff as the above 109 portion at the time of the appraisal of several years since there was no facility separate from other parts at the time of the above application for registration, the above part of 109 square meters of the ground surface of this case was not in a situation where the above part can be offered as an independent building, and the above part of the building was merely a part of the structure and independence of the building that can be divided into 19.83 square meters, and thus, there was no error in the misapprehension of legal principles as to the existence or absence of sectional ownership as to the above part of the building, and thus, it cannot be determined otherwise by the court below's determination of the above legal reasoning.
Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.