[1] In the case of a contract for the sale or exchange of a sectioned store, whether a sectioned store established by public records, such as a collective building ledger, regardless of the actual use of the store, becomes subject to the sale or exchange (affirmative in principle)

[2] In a case where Gap and Eul filed a claim for damages due to the exchange of other person's rights against Eul who was requested by the head of the commercial building management office to remove the facilities of the divided store which infringed the common use area while Gap and Eul entered into a contract for the exchange of the divided shop purchased with Eul's husband's apartment building and Eul's husband after Eul's husband's husband attached, Eul prepared a sales contract in the form of direct purchase with Byung, and used after delivery of the divided shop, the case holding that the judgment below erred in the misapprehension of legal principles, etc. on the ground that the object of exchange contract is part of

[1] Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings provides that one unit of commercial building shall be the object of ownership of a sectioned store which meets certain requirements and is divided for use. Barring special circumstances, the number, type, structure, location, and area of a sectioned store shall be specified by the registration of a building ledger and the registration based thereon, barring special circumstances. Therefore, barring special circumstances, such as where a party to the transaction of a sectioned store acknowledges that the party to the transaction of the sectioned store is not the intention to trade the sectioned store by means of collective building ledger, etc., regardless of the actual status of use, it shall be deemed that the transaction of the sectioned store is the object of purchase and sale, regardless of the actual status of use. While the party to the transaction knew that the actual status of use of the sectioned store at the time of the purchase and sale contract is different from that of the collective building ledger, etc., it shall not be deemed that the parties to the transaction have purchased and sold the sectioned store in accordance with the current status of use and sale of the object, and such legal doctrine applies to the specific subject matter.

[2] In a case where Gap and Eul filed a claim for damages due to the exchange of rights against Eul who was requested by the head of a shopping district management office to remove the facilities of a divided store which intrudes the section for common use, while Gap prepared a sales contract in a form of direct purchase with Eul's husband's apartment building and Eul's divided store purchased after Eul's husband's husband attached to Byung, the case held that the judgment below erred by misapprehending the legal principles as to the claim for damages due to the reason that Gap and Eul's separate stores are clearly stated in the sales contract, which is a disposition document regarding the exchange contract, as the object of the collective building register and the copy of the register, are the object of the exchange contract, since Gap and Eul are clearly stated in the sales contract which is the object of the exchange contract, and there is an intention to make the object of the exchange contract as part of the store according to the actual use status including the section for common use.

[1] Articles 563 and 596 of the Civil Act, Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings / [2] Articles 563, 567, 569, 571(1), 596 of the Civil Act, Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Decision 92Da48918, 48925 delivered on May 11, 1993 (Gong1993Ha, 1678)

Plaintiff (Law Firm Daba, Attorneys Kim Jong-seok, Counsel for plaintiff-appellant)

Defendant (Law Firm Man-ro, Attorneys Yang Chang-won, Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na120434 decided October 26, 2011

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings provides that one unit of commercial building shall be the object of ownership of a sectioned store which meets certain requirements and is divided for use. Barring special circumstances, the number, type, structure, location, and area of a sectioned store shall be specified by the registration of a building ledger and registration based thereon, barring special circumstances. Therefore, barring special circumstances where a party to the sale and purchase of a sectioned store deems that the party to the sale and purchase of the sectioned store is not the intention to trade the sectioned store, the structure, location, and area of the sectioned store shall be deemed to be the object of the sale of the sectioned store according to the public records, such as the collective building ledger, regardless of the actual status of use as a store, regardless of the actual status of use as a store. While the party to the sale and purchase knew that the actual use status of the sectioned store was different from the public records such as the collective building ledger, it shall be deemed that the party to the sale and purchase was the object of the sale and purchase, regardless of the position and size of the public records, and the object of the sale contract.

2. Comprehensively taking account of the selected evidence, the lower court: ① purchased the apartment house 202-7 (hereinafter “the apartment house of this case”) from Nonparty 2; ② the Defendant’s husband purchased real estate indicated in the separate sheet (hereinafter “the instant apartment building”) from Defendant 1 in the name of Nonparty 4; ② the Plaintiff and the Defendant entered into a contract for exchanging the instant apartment building owned by Nonparty 1 and Nonparty 3 (hereinafter “the instant apartment building”). The Plaintiff’s part of the apartment building of this case and the instant apartment building owned by Nonparty 1 was located for the first time after the Plaintiff’s construction of the apartment building of this case and the instant apartment building of this case, and the Plaintiff’s construction of the apartment building of this case constituted a sales contract with Nonparty 1, 209, and the part of the instant apartment building of this case, which was owned by Nonparty 1, the Plaintiff’s agent, which was located in the building of this case. ④ The part of the instant apartment building of this case, which was exchanged on February 10, 2009.

Then, the lower court determined that the Defendant was liable to compensate the Plaintiff for damages, insofar as the Plaintiff and the Defendant traded the instant store with the intent to exchange the instant apartment in accordance with the current status set up in ①, ②, ②, ③, ④ and ④ the subject matter of the instant exchange contract, and the Defendant’s acquisition of the part, which is the common area of the instant building, and the common area of the instant building, was in the state of social norms that it is impossible for the Plaintiff to transfer the said part to the Plaintiff.

3. However, the lower court’s determination is difficult to accept in light of the aforementioned legal principles and records.

According to the records, the sales contract between the Plaintiff and the co-defendant 1 of the first instance trial, which is a disposal document concerning the instant exchange contract, clearly states that the instant store, namely, “10.54m2 of the instant building,” which is the divided store, is the object of sale, is clearly stated, and this is consistent with the entries in the collective building ledger and the copy of the register.

Therefore, the subject matter of the instant exchange contract is not the store ② of this case, the structure, location, and area of which are specified by the sales contract and the ledger of collective buildings, the public book, and the copy of the register (=the store ② of this case), but the subject matter of the instant exchange contract should be deemed the store of this case, unless there are special circumstances to deem that the Plaintiff and the Defendant had expressed intention to be the common area ①, ②, ③, and ④.

However, the circumstances based on the lower court are merely the fact that the Plaintiff and the Defendant established a coffee sales facility above a section for common use, but there was mistake or mistake in the location or boundary of the subject matter under the exchange contract of this case, and thus, the subject matter of the exchange contract of this case is not the store of this case but the section for common use, including ①, ②, ③, and ④. Moreover, even after examining the records, there is no data to acknowledge the special circumstances to view as above.

Nevertheless, solely for the reasons indicated in its holding, the lower court recognized that the subject matter of the instant exchange contract was not a sales contract, a collective building ledger, a public book, a certified copy of the registry, but a section 1, a common area, and partly accepted the Plaintiff’s claim on the premise that it was not a store of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the specification of the subject matter of the exchange contract, thereby adversely affecting the conclusion of the judgment. The

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)