In the partition of co-owned property in the lawsuit for partition / If the co-owned property is divided in kind / Whether the remaining co-owners who do not want the partition is permitted to leave as co-ownership within the share limit of the co-owner (affirmative), and whether the other party can divide in kind by sharing the other party even if the other party does not want to maintain the co-ownership relationship (negative)

Unless there exist such circumstances as above, the court shall render a judgment that recognizes the sole ownership of each co-owner for the divided property by dividing the jointly owned property into several goods in kind according to the ratio of shares of each co-owner and by the situation of each co-owner's co-owner's co-owner's share in the co-owner's co-owner's co-ownership according to the share of each co-owner's co-owner's share in the co-owner's co-owner's co-ownership and the co-owner's share ratio can be reasonably divided according to the co-owner's share ratio if the co-owner's co-ownership is divided in kind but the co-owner's share ratio is not allowed if the co-owner's share is divided in kind, but if the co-owner's share is divided in kind, and if the co-owner's share is not allowed, the remaining co-owners who do not want the division is allowed in kind within the share limit of the co-owner's share limit and the other co-owners who do not want the division.

Article 269 of the Civil Act

Supreme Court Decision 91Da27228 delivered on November 12, 1991 (Gong1992, 102) Supreme Court Decision 93Da27819 delivered on December 7, 1993 (Gong1994Sang, 336)

Plaintiff (Appointed Party) (Attorney Lee Jong-chul et al., Counsel for the plaintiff-appellant)

Defendant 1 and 16 others (Law Firm Lee & Lee LLC, Attorneys Oh Jeong- even et al., Counsel for the defendant-appellant)

Gwangju District Court Decision 2013Na51847 Decided November 19, 2014

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

The grounds of appeal are examined.

1. The court shall, in principle, divide the article jointly owned in kind into money if a co-owner's agreement is reached, but if the article jointly owned is divided through a trial due to the failure to reach agreement, the court shall order the auction of the article and the proceeds payment can be made only when the value of the article is likely to be significantly reduced if the article is divided in kind or in kind. Thus, barring such circumstances, the court shall render a ruling that recognizes the sole ownership of each co-owner for the article jointly owned as it is divided into several articles according to the share ratio of each co-owner. The method of division does not need to be determined in a reasonable manner according to the share ratio of the co-owner according to the court's discretion, rather than by the method requested by the parties. If the article jointly owned is divided in kind, the remaining co-owners who do not want to be divided in kind are still entitled to the co-ownership of the article in kind within the share limit of the co-owner and the remaining co-owners who do not want to be divided in kind are still entitled to the co-ownership of the article.

2. According to the records, the defendants asserted that the division method of the building of this case sought by the plaintiff (appointed party) in the court below, that is, after dividing the building of this case into the vertical direction as shown in the annexed drawings of the court below, (a), (b), (e), (f) the part against the plaintiff (Appointed party) and the designated party's sharing, (b) the part against the defendants' sharing, and (f) the part against the defendants' sharing (hereinafter "the division method of this case"). Since there is a conflict of interests between the defendants, the division in kind in the manner of maintaining the sharing relationship between the defendants shall not be permitted. Further, the defendants 9, 10, and 13 asserted that the specific part of the building of this case in this case is likely to cause the partition of co-owned property by the method of recognizing their own ownership.

Nevertheless, under the premise that only the co-ownership relationship between the Plaintiff (Appointeds) and the Defendants is resolved and the co-ownership relationship is permitted, the lower court determined that the instant building should be divided in kind by the instant partition method solely for the reasons indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on co-owned property partition, thereby adversely affecting the conclusion of the judgment, and the allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Selections: Omitted

Justices Jo Hee-de (Presiding Justice)