Whether a special agreement on the use and management of, and benefit from, common property jointly owned by co-owners is succeeded to by a specific successor (affirmative), and whether a special agreement may be amended in cases where a special agreement is modified to a co-owner after the special agreement is concluded and there are any circumstances to modify

A special agreement on the use and management of, and benefit from, common property among co-owners shall be naturally succeeded to by the specific successor of the co-owners. However, Article 265 of the Civil Act provides that "matters concerning the management of the common property shall be determined by the majority of co-owners' shares," and thus, a special agreement may be amended by a majority of co-owners' shares, if any change is made to, and any special agreement is possible after, the special agreement

Article 265 of the Civil Act

[Defendant-Appellant] Plaintiff (Attorney Kim Do-mo et al., Counsel for defendant-appellant)

Defendant

Daejeon District Court Decision 2004Na6052 Delivered on December 3, 2004

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

1. On the first and third grounds for appeal

According to the reasoning of the judgment below, the court below acknowledged the facts based on its adopted evidence, and found that the plaintiff, the non-party 2, the non-party 3, the non-party 5, the non-party 6, the non-party 7 (hereinafter "the plaintiff, etc.") who inherited the land of this case due to the death of the deceased non-party 1 and the non-party 8 have removed the existing building on the land of this case and newly constructed the building of this case. The above non-party 8 had completed the registration of preservation of ownership on the building of this case and did not raise any objection even though he resided in the building of this case. The above non-party 8 had no dispute between the parties as to the facts residing in the building of this case and the right of ownership on the building of this case, and the defendant had acquired the share of the above non-party 8 and the right of ownership on the building of this case from the deceased non-party 1's remaining successors and had no exclusive ownership on the land of this case removed the building of this case.

A special agreement on the use and management of, and benefit from, common property among co-owners shall be naturally succeeded to by the specific successor of the co-owners. However, Article 265 of the Civil Act provides that "the matters concerning the management of the common property shall be determined by the majority of co-owners' shares." Thus, the special agreement may be amended by a majority of co-owners' shares if it is modified after the special agreement and there are circumstances that make it possible to modify the special agreement.

According to the records, the above non-party 8 who was the co-owner of the land of this case due to the death of the deceased non-party 1 and the plaintiff et al. shall vest in the building of this case as owned by the above non-party 8 among the co-owners who will actually reside in the building of this case. The above non-party 8 made a special agreement on the use, profit-making and management of the land of this case, which is jointly owned by the co-owner, to allow the possession and use of the land of this case for the ownership and use of the building of this case. According to the above legal principles, the special agreement between the above co-owners shall also be succeeded to the plaintiff and the defendant who is the specific successor to the co-ownership of the remaining co-ownership except the above non-party 8, who is a specific successor to the co-ownership of the above non-party 8, but since the co-owner was modified after the special agreement and the plaintiff has a majority share, if there is any circumstance to modify the special agreement, the plaintiff may seek modification of the special agreement to the defendant.

Furthermore, the following circumstances are examined as to whether there is any circumstance to modify the above special agreement in this case. In other words, the plaintiff et al. accepted a special agreement that the above non-party 8 can occupy and use the part of the building site of this case for the ownership and use of the building of this case for a considerable period of time. The plaintiff et al. accepted the restriction on use and profit-making of the building site of this case as a party to the above special agreement, even though it is well known of the contents of the special agreement, the plaintiff et al. received his share from the co-owners other than the above non-party 8 after the special agreement, and became a majority equity right holder. If the co-owners do not want to maintain the common relation due to disputes over the use and profit-making of the common property of this case, the co-ownership can be divided at any time, and the defendant obtained the judgment of the court of partition of co-owned property at the plaintiff's preliminary claim by dividing the common property, and it would not be desirable to modify the above special agreement in light of social and economic circumstances.

Therefore, the above special agreement is applicable to the plaintiff and the defendant, so the plaintiff cannot seek removal of the building of this case and delivery of land against the defendant who occupies and uses the site part of the building of this case among the land of this case pursuant to the above special agreement.

Ultimately, we affirm the conclusion that the court below did not have any improper aspect in its reasoning but did not have the right to seek removal of the building of this case and delivery of the land, and we cannot agree with the conclusion of the court below that the plaintiff did not have the right to seek removal of the building of this case and delivery of the land, and there were no errors in the misapprehension of the legal principles as to the agreement between the co-owners or the principle of good faith or the principle of prohibition of abuse of rights as alleged in the ground of appeal.

2. On the fourth ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the facts as to the plaintiff's conjunctive claim based on the evidence of the employment, and determined that it is reasonable to divide the land of this case by means of auction as the right holder, and the defendant also consented to the sale division method by auction, and since part of the land of this case is used as the site of the building of this case, it is physically difficult to divide it in kind, and it is socially and economically unreasonable to divide it in kind.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error in the misapprehension of legal principles as to the method of partition of co-owned property, as alleged in the ground of appeal.

3. Conclusion

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 Shin Hyun-chul (Presiding Justice)