In case where a sectional owner disposes of the right to use site separately from his section of exclusive ownership before Article 20 of the Addenda to the Act on the Ownership and Management of Aggregate Buildings (amended by April 10, 84), pursuant to Article 4 of the same Act, the validity thereof (=effective), and in case where the section of exclusive ownership and the right to use site are disposed of after the application of the same Article respectively, the validity thereof (=

Article 20 of the Act on the Ownership and Management of Aggregate Buildings and Article 4 of the Addenda ( April 10, 84)

Supreme Court Decision 2010Da72779, 72786 Decided January 27, 2011

Plaintiff (Appointed Party)

See attached list of the Defendant (Law Firm LLC, Attorneys Jeong Jong-soo et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2014Na53027 Decided October 23, 2015

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Article 20 of the Act on the Ownership and Management of Aggregate Buildings, enacted by Act No. 3725 on April 10, 1984 (hereinafter “Aggregate Buildings Act”) provides that “The right to use site of a sectional owner shall follow the disposition of his section for exclusive use (Paragraph 1), and the sectional owner shall not dispose of his right to use site separately from his section for exclusive use (Paragraph 2).” Article 1 of the Addenda of the same Act provides that “This Act shall enter into force after one year has elapsed since its promulgation,” and Article 4 provides that “The provisions of Articles 20 through 22 concerning the right to use site of the existing section for exclusive use and its existing section for exclusive use at the time this Act enters into force shall apply from the date two years have elapsed since the enforcement date of this Act.”

According to the above provisions, prior to the application of Article 20 of the Addenda to the Act on the Ownership and Management of Aggregate Buildings, it is valid that a sectional owner disposes of the right to use site separately from the section for exclusive use. In such a case, even after the application of Article 20 of the Act on the Ownership and Management of Aggregate Buildings, the disposal of the section for exclusive use and the right to use site, respectively, violates the unity of the section for exclusive use and the right to use site (see Supreme Court Decision 201Da7279, 72786, January 27, 201).

2. The reasoning of the lower judgment and the record reveal the following facts.

1) At around 1979, Nonparty 1 newly constructed the instant building in the form of sectional ownership on the instant land owned by it, and completed the registration of preservation of ownership on July 19, 1979, the sectional ownership of the instant building was sold in lots to buyers, and the registration of ownership transfer on part of the instant land was completed along with the registration of ownership transfer on the relevant sectional ownership. The remainder of co-ownership of the instant land was owned by himself/herself or transferred to others than sectional owners.

2) The registration of an aggregate building was completed on October 20, 1986 under the Act on the Ownership and Management of Aggregate Buildings. On the same day, as to the co-ownership of the instant land, the registration of the ownership of the instant building including No. 121, No. 223, and No. 224 of the second floor owned by Nonparty 1 was completed, with respect to the remaining co-ownership shares, excluding the 497.18/3,739 shares owned by Nonparty 1 and the 16.03/3,739 shares owned by Nonparty 2, among the co-ownership of the instant land.

3) On July 27, 1987, Nonparty 1 completed the registration of ownership transfer due to each purchase in the name of Nonparty 3 with respect to shares 3.05/3,739 among shares of 497.18/3,739 on the instant land owned by himself (hereinafter “instant co-ownership”), and with respect to shares 132.23/3,739, Nonparty 1 completed the registration of ownership transfer due to each purchase in the name of Nonparty 4, and with respect to the remaining shares 331.90/3,739 shares, Nonparty 1 completed the registration of ownership right to part of the instant building.

4) After that, the co-ownership shares in the above non-party 4 remaining separately without registering the right to a site as above were transferred before the transfer, and the co-ownership shares in the above non-party 3 were completed in the name of the plaintiff (appointed party) and the designated party 2, and the co-ownership shares in the above non-party 3 were completed in the name

5) The Defendants owned the pertinent section of exclusive ownership among the instant buildings as stated in the judgment of the court below, and used and profit from the entire land of this case.

3. Examining the above facts in light of the legal principles as seen earlier, the non-party 1 left his share in the instant case after newly building the instant building in the form of sectional ownership on the instant land owned by him, and selling the instant land and building to several buyers, which was before the provision of Article 20 of the Addenda to the Aggregate Buildings Act is applied pursuant to Article 4 of the same Act, and thus, it is not subject to a restriction on the prohibition of separate disposition as prescribed by Article 20 of the same Act. The non-party 1 owned Nos. 121, 223, and 224 of the first floor among the instant building at the time of the enforcement of the Aggregate Buildings Act, which was before Article 20 of the Aggregate Buildings Act was applied, but on October 20, 1986, when the registration of a site ownership was completed, the right to use the instant building in proportion to each of the above sections of exclusive ownership was not deemed to have been separately owned by the non-party 2 and the right to use the instant section of exclusive ownership.

Nevertheless, solely for reasons indicated in its holding, the lower court determined that the disposal disposition of part of the instant shares by Nonparty 1 against Article 20(2) of the Aggregate Buildings Act was null and void. In so doing, it erred by misapprehending the legal principles on the application of Articles 4 and 20 of the Addenda to the Aggregate Buildings Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

4. It is so decided as per Disposition by the assent of all participating Justices on the bench, and the case is reversed and remanded to the court below for a new trial and determination.

[Attachment 1] List of Appointeds: Omitted

[Attachment 2] List of Defendants: omitted

Justices Kim Shin (Presiding Justice)