If the article jointly owned is divided by a trial, the requirements for ordering the installment of the price therefor.

In the case of dividing an article jointly owned through a trial, if it is impossible to divide it in kind or if the value of the article is likely to be significantly reduced, the auction of the article may be ordered, and the "undivided in kind" shall not be physically strict interpretation. It includes cases where it is difficult or inappropriate to divide the article in kind in light of the nature, location, area, situation of use, and use value after the division, etc. of the article jointly owned in kind, and it includes cases where the value of the article might be significantly reduced if it is substantially reduced if it is divided in kind." Even if the co-owner's co-owner's property is divided in kind, it includes cases where the value of the article to be owned by the division in kind might be significantly reduced than the share value before the division. Since the court is a principle in dividing the article jointly owned in kind, it is not possible to permit the division in kind without an objective and specific deliberation on the requirements that inevitably order the division in kind between the co-owners to be made.

Article 269 of the Civil Act

Supreme Court Decision 91Da2728 delivered on November 12, 1991 (Gong1992, 102) Supreme Court Decision 93Da27819 delivered on December 7, 1993 (Gong1994Sang, 336) Supreme Court Decision 2002Da4580 Delivered on April 12, 2002 (Gong2002Sang, 1124), Supreme Court Decision 2004Da10183, 10190 Delivered on July 222, 2004 (Gong2004Ha, 1511)

Plaintiff

Defendant (Attorney Hwang Woo-soo, Counsel for defendant-appellant)

Daegu District Court Decision 2008Na10967, 10981 Decided April 30, 2009

The part of the judgment of the court below regarding the claim of the principal lawsuit is reversed, and the Defendant-Counterclaim Plaintiff’s appeal corresponding to that part is dismissed. The Defendant-Counterclaim Plaintiff’s appeal regarding the counterclaim is dismissed. The total cost of the lawsuit is borne by the Defendant-Counterclaim Plaintiff in total, including the principal lawsuit and the counterclaim.

The grounds of appeal are examined.

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant)

In the case of dividing the article jointly owned through a trial, if it is impossible to divide it in kind or if the value of the article is likely to be significantly reduced in kind, the auction of the article may be ordered, and the "undivided in kind" shall not be physically strict interpretation. It includes cases where it is difficult or inappropriate to divide the article in kind in light of the nature, location, area, utilization situation, use value after the division, etc. of the article jointly owned, and the "where the value of the article is likely to be significantly reduced if the article is divided in kind" includes cases where a co-owner's price is likely to be significantly reduced compared to that of the article before the division. However, it does not include cases where a co-owner's price of the article to be owned in kind is more than that of the article before the division in kind, but it does not include cases where a co-owner's opinion to divide in kind is not allowed in accordance with the objective method of 100Da2728, Nov. 12, 191; 2002.

According to the reasoning of the judgment below, the court below determined that the land in this case was not subject to the agreement between the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") and the defendant (Counterclaim plaintiff; hereinafter "the defendant") as shown in the attached Form No. 1,69m2 (hereinafter "the land in this case") prior to Si/Gun/Gu (hereinafter "the land in this case") but was made according to the boundaries of division established voluntarily in the course of the survey and appraisal of this case, and that the land in this case was not subject to the agreement between the plaintiff (the counter defendant; hereinafter "the plaintiff") and the defendant (the plaintiff), and that the land in this case was in the same manner and time of division, such as the defendant's assertion that the form and value of the land in this case are different from that in this case, the land in this case is not possible to divide in kind, or there is a concern that the economic value may significantly decrease if divided in kind.

However, in light of the above legal principles, the court below ordered the division of price based on the subjective and abstract circumstances, such as (a) on board the land of this case, (b) in the indication of the annexed drawing, when it is impossible to divide it in kind in kind or when the value thereof is likely to be significantly reduced if it is not divided in kind in kind in kind in kind, as shown in the annexed drawing, without an objective and specific deliberation on the fact that the land of this case falls under (a) above, (b) land form and exchange value, method and time of division, etc., which are not consistent with the intent of the plaintiff and the defendant. The judgment below

Meanwhile, in full view of various circumstances, such as the shape or location of the land of this case, its utilization or economic value, and the difference in the shape or exchange value of the land of this case where replotting takes place as to the land of this case, the land of this case would rather have no particular influence on co-owners' interests, and the specific method of partition constitutes a case where the land of this case constitutes a case where the in-kind division is more appropriate than the price division. The land of this case, which is a specific method of partition, shall be divided into the land of this case, 9, 10, 11, 12, and 1 of the attached drawing indication 1, 8, 9, 10, 11, and 1 of the land of this case, which is linked in turn to the land of this case, is owned by the Plaintiff, and the land of this case, 95 square meters in line with the aforementioned drawing indication 1, 2, 3, 4, 5, 6, 7, 8

Therefore, among the judgment below, the part of the principal lawsuit ordering the partition of co-owned land in the manner of partition of co-owned land of this case is reversed, and this part is sufficient for a party member to directly judge, and therefore, it is decided to do so as follows.

As seen above, the part of item (a) of the ship connecting the land of this case in sequence 1, 8, 9, 10, 11, 12, and 1 in the annexed Form No. 1, 2, 3, 4, 5, 6, 7, 8, and 1 are owned by the Plaintiff, and it is reasonable to divide the part of 744 square meters into that of the Defendant, which is connected in sequence in the same order as indicated in the annexed Form No. 1, 8, 9, 10, 12, and 1, and which are owned by the Plaintiff, and the part of 744 square meters is owned by the Defendant. Thus, the Plaintiff’s claim for main lawsuit

2. As to the Defendant’s ground of appeal

According to the reasoning of the judgment below, the court below rejected the defendant's primary and conjunctive counterclaim on the premise that the evidence submitted by the defendant alone was insufficient to recognize that there was a division of inherited property with the content that the plaintiff and the defendant would share the land equally, as alleged by the defendant. In light of the records, the above fact-finding and decision of the court below is just and there is no violation of

3. Conclusion

Therefore, the part of the judgment of the court below concerning the claim of the principal lawsuit is reversed and remanded as above, and the defendant's appeal concerning the counterclaim is dismissed. The total costs of the lawsuit are assessed against the losing party in total, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)