Where a co-owned property is divided by a trial, the meaning of "when it is impossible to divide it in kind or if it is possible to divide it in kind in kind, the value may be reduced remarkably if it is not paid in kind."

Article 269 of the Civil Act

Supreme Court Decision 2002Da4580 Decided April 12, 2002 (Gong2002Sang, 1124) Supreme Court Decision 2009Da40219, 40226 Decided September 10, 2009 (Gong2009Ha, 1643)

S. S. S. Assets Management Loans

Defendant (Law Firm Branch, Attorneys Jin-jin et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2012Na46179 Decided June 13, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

A creditor may exercise the debtor's right to preserve his/her claim. In principle, in the case of dividing an article jointly owned by a trial, in kind, if it is impossible to divide it in kind or in kind, and if the value of the article is likely to be significantly reduced, an auction of the article jointly owned may be ordered. Here, the requirement includes not only cases where it is physically impossible to divide the article in kind, but also cases where it is difficult or inappropriate to divide the article in kind in light of the nature, location and size of the article jointly owned, the situation of its use, the use after the division, and the use value after the division. The requirement includes cases where it is difficult or inappropriate to divide the article in kind. In addition, even if a co-owner divides the article in kind, it includes cases where the value of the article to be owned by the person is likely to significantly decrease rather than the share value before the division (see Supreme Court Decision 2009Da40219, Sept. 10, 2009).

According to the reasoning of the lower judgment and the record, ① the Nonparty was granted a loan of KRW 560 million from the Korea Savings Bank (former Mutual Savings Bank) on October 18, 2006. The Plaintiff acquired the above loan claims on March 31, 2011. ② The real estate of this case is owned by the Nonparty and the Defendant as one unit of commercial building, and owned 1/2 shares. On November 4, 2004, the maximum debt amount of the instant real estate was KRW 637 million, the debtor, the Defendant, the Defendant, and the New Mutual Savings Bank was established, ③ the Nonparty’s order of compulsory commencement of the auction on August 6, 2009, but the auction procedure was conducted once more than KRW 70 million, and the Nonparty’s obligation was revoked on March 31, 2010, KRW 2009, KRW 3700,0000,000,000,000,000,000.

Examining these facts in light of the legal principles as seen earlier, the plaintiff needs to exercise the right to partition of co-owned property against the defendant of the non-party by subrogation of the non-party in order to preserve his monetary claim against the non-party, and the real estate of this case is difficult or inappropriate to divide in kind, or the value thereof might be significantly reduced due to the spot partition. Therefore, the court below held that the plaintiff can claim partition of co-owned property as to the real estate of this case by subrogation of the non-party. Thus, the court below did not err in the misapprehension of legal principles as to the method of partition of co-owned property where the plaintiff exercises the right to partition of co-owned property,

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.

Justices Kim So-young (Presiding Justice)