Since the specific method of determining the common property among co-owners is related to the management of the common property, co-owners of the land shall not be allowed to exclusively use the common property with more than a person who is not by a resolution of a majority of co-ownership, even if it is a part

Since the specific method of determining the common property among co-owners is related to the management of the common property, co-owners of the land may not use it exclusively as a person unless determined by a decision of a majority of all the co-owners, even if it is a part of the land.

Article 265 of the Civil Act

Supreme Court Decision 65Da2033 Decided April 19, 1966 Supreme Court Decision 70Da2337 Decided December 29, 1970

Sace Sace

Maximum food and 3 others

Seoul Civil Area, Seoul High Court Decision 70Na1134 delivered on April 2, 1971

The original judgment shall be reversed, and

The case is remanded to Seoul High Court.

Judgment on the grounds of appeal by the Plaintiff’s attorney

According to the reasoning of the judgment of the court below, the court below rejected the plaintiff's 252 square meters and 101 square meters and 79 square meters and 2-31 square meters and 31 square meters and 2-31 square meters and 2-79 square meters of the same district (the site of this case where the plaintiff seeks removal) as the completion of the land substitution work due to the implementation of the land improvement project on February 19, 1949, based on the evidence of the city, the land of the above 2-mentioned land is owned jointly by the plaintiff, the maximum common use of the building, and the non-party 97/2 of the plaintiff's 252, the non-party 23/252's common use of the building, and the non-party 25/252's common use of the building is the maximum co-owners' common use of the building, and the plaintiff's common use of the building and the non-party 25/252's common use of the building is not determined by the majority co-ownership.

However, it is clear by the main text of Article 265 of the Civil Act that the specific method for the use of and benefit from the common property among co-owners is to be determined as a majority of co-owners' shares, and therefore, the co-owners of the land cannot use it exclusively by themselves even if part of the land is the co-owners. Therefore, even if Defendant Choi Young-sik has co-ownership rights to part of the land in the dispute of this case, it cannot be deemed unlawful unless the exclusive use by the defendant is not by a resolution of a majority of co-ownership rights, even though the exclusive use by the defendant cannot be deemed to be illegal, it is judged that the original judgment was based on the legitimate title for the use of part of the common property in this case by the reason that the use of part of the public land in this case is the co-ownership right holder is the co-ownership right (see Supreme Court Decision 65Da2033, Apr. 19, 196; Supreme Court Decision 70Da2337, Dec. 29, 1970).

Therefore, it is so decided as per Disposition by the assent of all participating Justices under Article 406 of the Civil Procedure Act.

Supreme Court Judge Yang Byung-ho (Presiding Judge)