In cases where the owner of a building does not actually occupy the building, whether the possession of the building site is recognized (affirmative) / Whether the sectional owners of one building jointly possess and use the entire building site (affirmative in principle)

Article 192 of the Civil Act, Article 2 subparag. 6 of the Act on the Ownership and Management of Aggregate Buildings

Supreme Court Decision 2012Da7670 Decided September 4, 2014

Seoul Asset Management Corporation

Defendant 1 and one other

The Intervenor joining the Defendants

Seoul Central District Court Decision 2019Na29371 Decided November 12, 2019

The part of the judgment of the court below pertaining to the request for the delivery of land against the Defendants’ Intervenor is reversed, and this part of the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed. All of the appeals by the Defendants and the remaining appeals by the Defendants are dismissed. The costs of appeal between the Plaintiff and the Defendants are assessed against the Defendants, and 1/10 of the total costs of appeal between the Plaintiff and the Defendants’ Intervenor are assessed against the Plaintiff

The grounds of appeal are examined.

1. On the removal of a building and the claim for restitution of unjust enrichment

For the reasons indicated in its holding, the lower court determined that the instant voluntary auction on the instant land’s share is valid, and that the Plaintiff, as a co-owner of the instant land offered as a site for an aggregate building, may file a claim for removal and return of unjust

In light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the relevant legal doctrine or by failing to exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal.

2. As to the claim for partial equity of land

A. In light of social norms, since a building cannot exist regardless of its site, the land which became the site for the building shall be deemed to be possessed by the owner of the building. In such cases, even if the owner of the building does not actually occupy the building or its site, it shall be deemed that he/she occupies the site to own the building. Meanwhile, since the sectional owners of one unit of building jointly own the section for common use while partitioned ownership, barring any special circumstance, they jointly possess and use the entire site for the building (see Supreme Court Decision 2012Da7670, Sept. 4, 2014, etc.).

B. Examining in light of the above legal principles, the Defendants’ acquiring intervenor (hereinafter “acquisition intervenor”) should be deemed to jointly occupy and use the entire land of this case, which is the site of the building, with other sectional owners without any title, as the instant apartment (water omitted), without the right to use the land of this case, without any title. As such, the Plaintiff can only seek to transfer the entire land of this case against the acquiring intervenor, and seeking to transfer the share corresponding to the ratio of the area of the area of the apartment (water omitted), among the land of this case, the contents of the benefits are not clear, and the execution is not possible.

C. Nevertheless, the lower court cited the Plaintiff’s claim for extradition on the portion corresponding to the ratio of the size of the apartment (water omitted) among the instant land, on the premise that there exists a benefit in protecting the rights. In so doing, the lower court erred by misapprehending the legal doctrine on the benefit of a lawsuit, thereby adversely affecting the conclusion of

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for the delivery of land against the acquiring intervenor is reversed. Since this part is sufficient for this court to directly render a judgment, this part of the judgment of the court of first instance is revoked, and this part of the lawsuit is dismissed. The remaining appeals by the Defendants are all dismissed. The costs of appeal by the Plaintiff and the Defendants and the total costs of the lawsuit between the Plaintiff and the acquiring intervenor are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)