Plaintiff (Appointed Party)

Defendant 1 and eight others (Attorney Ji-sung et al., Counsel for the defendant-appellant)

June 1, 2010

1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

[1] The defendant 1; (1) the defendant 1; (2) the defendant 2; (3); (3); (4) the defendant 2; (4) the defendant 2; (50; 183,70; and (4) the defendant 5; (4) the defendant 2; (5) the defendant 2; and (3) the defendant 1; and (4) the defendant 2; and (4) the defendant 1; and (5) the amount of money calculated at the rate of 0.4; and (4) the amount of money calculated at the rate of 10.4; and (4) the amount of money; and (5) the amount of money calculated at the rate of 20.4; and (4) the amount of money calculated at the rate of 10; and (5) the amount of money calculated at the rate of 16.4; and (5) the amount of money to KRW 17,50; and (3) the amount of money to be paid at the rate of 10.4; and (5) the amount of money to be paid;

1. Basic facts

The following facts can be acknowledged by comprehensively taking account of the following facts: (a) there is no dispute between the parties; (b) evidence Nos. 1, 2, and 5; (c) evidence Nos. 1 to 4; (d) evidence Nos. 1 to 5; (e) evidence Nos. 1 to 2; and (e) evidence Nos. 1 to 2; and (e) evidence Nos.

A. On August 30, 1985, the registration of ownership transfer was completed on the non-party 2, the non-party 2 with respect to the Seoul Seodaemun-gu (hereinafter referred to as the “instant site”). The registration of ownership transfer was completed on the non-party 2 on August 30, 1985 with respect to the non-party 3 multi-household residential building (9 households; 9 households; 147.96 square meters, 136.80 square meters, 3 stories and 136.80 square meters (hereinafter referred to as the “instant building”).

B. On August 2, 2002, Nonparty 1 purchased the instant building site and the instant building from Nonparty 2, and converted the instant building into nine units of multi-family housing (a collective building) as follows. Nonparty 1 completed the registration of ownership transfer on August 5, 2002 regarding the instant building site and the instant nine generations.

(2) 4.2 42.04 4 (No. 2 omitted) 42.04 4.04 42.04 42.62 42 4.92 4.6 45 4.74 4.6 45 4.6 42 4.62 4.62 4.62 4.7 45 4.64 4.7 45 4.64 4.7 45.6 (No. 45.64.6 4.6 45 4.6 4.6 45.6 45.92 45.92 42 4.97 4.57 4.7 7 4.7 7 4.645 4.645 4.645 4.65 7 4.65 7 4.65 m2,000 m2.

C. In selling the above nine households on August 2002, Nonparty 1 sold the shares of the following ratio (the aggregate is 48.96/50 shares) out of the instant site. Therefore, Nonparty 1 left 216.54 shares (=1 48.96/265.50 shares) out of the instant site as part of the said nine households (hereinafter “instant shares”) with no superior relationship with the said nine generations, but completed the registration of ownership transfer with respect to the instant shares on March 24, 2005.

A table (number 1 omitted) (number 2 omitted) (number 1 omitted) (number 2 omitted) (number 3 omitted) (number 4 omitted) (number 4 omitted) (number 5 omitted) (number 5 omitted) (number 6 omitted) (number 43.74 square meters and 42.04 square meters (number 7 omitted) 42.04 square meters and 45.92 square meters 45.92 square meters and 46.80 square meters 46.80 square meters and 46.80 square meters 46.84 square meters and 127.4.44 square meters on April 204.204.4.594.68 4.68-4 - 74------ 50-25-25-5-25-6-5.-65-2-5.-6-5.-6-5-6-5.-6-6-5.

D. On November 20, 2008, Plaintiff (Appointed Party) and Plaintiff 2/3 (hereinafter “Plaintiff”) acquired the share of the land owned by Nonparty 3 (i.e., the share of this case) through public auction. In other words, Plaintiff 2/3 acquired the share of 13.00 out of the instant land, and Plaintiff 2/3 acquired each of 101.7 percent of the instant land, and completed the registration of ownership transfer on November 28, 2008.

E. From August 2002 to November 20, 208, under the condition that the registration of a site ownership was not completed with respect to the shares of a site transferred with nine households among the instant site, the ownership of the instant building was transferred before being transferred with the corresponding section for exclusive use by nine households among the instant building from August 2002 to November 20, 208. As of November 20, 2008, the current status of the ownership of the ownership of the ownership of the ownership of the ownership of the instant building by nine households

Defendant 4.37 4.74 4.74 4.75 4.75 4.50 4.45 265 4.50 4.50 265 4.64 4.50 4.50 265 4.50 265 4.65 4.50 4.65 4.65 4.50 4.465 4.65 4.65 4.65 4.25 4.65 4.65 4.25 4.65 4.65 4.65 4.65 4.65 4.65 4.65 4.65 4.65 4.65 2.65 4.65 20 4.65 4.65 4.65 4.65 20,000 2.47 4.65 24.65 2

F. However, on October 31, 2008, Defendant 1 completed the registration of ownership of 4.37/265.50 of the instant building site as the site ownership (number 1 omitted). Defendant 8 completed the registration of ownership transfer on April 23, 2009 as the site ownership of 4.68/50 of the instant building site (number 6 omitted). Meanwhile, on May 4, 2010, Defendant 3 completed the registration of ownership transfer with Nonparty 4 on the share of 4.20/50 of the instant building among the instant building (number 1 omitted) and 265.50 of the instant building.

G. From November 28, 2008 to September 27, 2009, the term rent of 216.54 square meters among the instant land is KRW 32,430,000, and the monthly rent is KRW 3,243,00.

2. The plaintiff (appointed party)'s claim and judgment

A. Contents of the Plaintiff’s assertion as to the cause of the claim

Of the instant land, the share ratio owned by the Plaintiff reaches 81.6%. However, the share ratio owned by the Defendants among the instant land is limited to 18.4%, which is only 3.1% of the floor area of the instant building.

Article 11 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act on the Ownership and Management of Aggregate Buildings") does not directly provide for the use of a site for common use. However, with regard to the use of a site for common use, Article 11 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act on the Ownership and Management of Aggregate Buildings") provides that "each co-owner may use a common area according to its use." The latter part of Article 263 of the Civil Act provides that "co-owner may use and benefit from the whole jointly-owned property at the ratio of shares." The scope of the use and profit-making of the jointly-owned property among the provisions of the Civil Act provides for the scope of the use and profit-making of the jointly-owned property, and the portion that can be used and profit-making at the ratio of shares is determined by the amount of the profit-making of the jointly-owned property. However, the former is natural in light of the nature of the co-owned share, and only the latter is meaningful."

The Defendants have the right to use the entire site of this case. However, in order for such use and profit-making to be lawful, they need to have the corresponding share of the site corresponding to their respective sections of exclusive ownership. However, while the Defendants did not have the right to share of the site corresponding to their respective sections of exclusive ownership, they take advantage of their benefits from using the right to share of the site. In other words, the Defendants enjoy unjust enrichment of counseling on rent for the difference in the statutory share of the land corresponding to their respective sections of exclusive ownership and the right to share of the land actually owned by the Defendants. Therefore, the Defendants are obliged to pay the Plaintiff the amount stated in their claim, such as the attached sheet of calculation.

(b) Markets:

The issue of this case is whether the latter part of Article 263 of the Civil Act applies to the co-ownership relationship of the site that is located in an aggregate building without completing the registration of a site ownership. While the Act on the Ownership of Aggregate Buildings has three provisions (Article 20-22), the Act on the Ownership of Aggregate Buildings has ten provisions (Article 10-19) about common areas (Article 10-19). However, the co-ownership relationship of a site in an aggregate building has the same nature as the co-ownership relationship in common areas. Accordingly, if the issues of this case are expressed differently, it can be said that the relationship between the latter part of Article 263 of the Civil Act and Articles 11 and 17 of the Act on the Ownership of Aggregate Buildings. Here, it is necessary to examine the characteristics of an aggregate building prior to the application of the provisions concerning co-ownership in the Civil Act as it is in the site in an aggregate building.

One of the characteristics of an aggregate building is the overlapping use of a building site. In other words, the owners of each section for exclusive use of a building that is clearly divided is a relation between one parcel or several lots in which the building is located.In addition, an aggregate building is a form of building created in order to ensure that people can reside or use as much space as possible by utilizing the spatially limited land as possible on the ground and underground space without any restriction. Accordingly, the overlapping use of a building site can be the inherent characteristics of an aggregate building. Due to these characteristics, the content of the right of a person holding the right to own a building on the site of an aggregate building is subject to various restrictions, unlike the cases of a person holding the right to own the building under the Civil Act.

For example, considering the characteristics of an aggregate building called a overlapping use of a site, a site should not be disposed of separately from a section for exclusive use in principle, and it should not be divided. Accordingly, according to Article 263 of the Civil Act, co-owners of the Civil Act may freely dispose of their shares. However, Article 20(1) and (2) of the Aggregate Buildings Act provides that the right to use the site of a sectional owner shall follow the disposal of the section for exclusive use owned by the sectional owner and may not be disposed of separately from the section for exclusive use. In addition, according to Article 268(1) of the Civil Act, co-owners may file a claim for partition of the jointly owned property under the Civil Act. However, under Article 8 of the Aggregate Buildings Act, a co-owner of the site shall not file a claim for partition of the site to the extent necessary for the use of the building if there is one building belonging to the section for exclusive ownership on the site. This means that the co-owner of the building site of an aggregate

According to the latter part of Article 263 of the Civil Act, co-owners are entitled to use all co-ownership in proportion to their shares, but Article 11 of the Aggregate Buildings Act provides that co-owners may use common areas according to their intended purposes. As seen earlier, inasmuch as co-ownership relation of a site and its character are the same as that of the common areas, the analogical application of Article 11 of the Aggregate Buildings Act, a co-owner who has co-ownership share in a site should be deemed to be able to use the site in accordance with his/her intended purpose. However, the purpose of use of the site in an aggregate building means the economic purpose of the site and it means the overlapping use of the site. Above all, the fact that a co-owner uses the site in proportion to his/her share is a co-ownership of an aggregate building. In short, the provisions of the relationship of use of common property under the Civil Act does not apply to the relation of use of a site in a aggregate building.

Ultimately, a sectional owner in an aggregate building shall be deemed to be legally entitled to use the entire site according to its purpose, irrespective of the ratio of the share in the site (see Supreme Court Decision 93Da601445, Mar. 14, 1995). This is likewise the same even if the share in the site owned by the majority of the Defendants in a simple sharing form and the right to a site registration has not been completed (see Supreme Court Decision 2009Da1433, May 28, 2009). In addition, the same applies to cases where part of co-owners of a building, as in the Plaintiff’s side, did not own the part of exclusive ownership, and the share ratio of the site without exclusive ownership is very high.

① On the other hand, the Plaintiff and the Defendants made the ownership relationship between the instant land was Nonparty 1, and Nonparty 1 did not claim the usage fee to the sectional owners of nine households from March 5, 2005 to November 20, 208 who lost the instant shares, even after selling the relevant shares together with nine households from among the instant building on August 2002. ② Nonparty 1 did not have any dispute between the parties to the instant land redevelopment and the said parties, when he transferred the instant shares to Nonparty 3 on March 4, 2005, up to the period when he sold the instant shares to Nonparty 3, the period when he transferred the ownership of the instant shares to Nonparty 4, 2005. ③ Nonparty 3 did not claim the usage fee to the sectional owners of nine households from March 5, 2005 to November 20, 2008 who owned the instant shares. ④ Nonparty 1 or 3 did not have any dispute between the parties to the instant redevelopment.

As seen earlier, a person holding a sectional ownership of an aggregate building has a legitimate right to use all the site of an aggregate building for the purpose of use, regardless of the ratio of the site and public land. In this case, "site of an aggregate building" should, in principle, be deemed to include all the land of an aggregate building. In light of such special characteristics of an aggregate building, the person who has sold an aggregate building shall complete the registration of ownership transfer only for a part of the "site of a building" to each sectional owner, and if he/she owns the remainder of the ownership, he/she shall, in principle, give the sectional owner the right to use his/her share free of charge in accordance with the usage of an aggregate building (see Supreme Court Decision 2002Da16965, Dec. 27, 2002).

In addition, a person who specially succeeds to and acquires a part of the land owned by such a buyer among the sites of an aggregate building (i.e., a share of a site without a section for exclusive use) shall be deemed to bear the duty to provide the sectional owner with the right to use a part of the land without such section for exclusive use free. According to Article 18 of the Aggregate Buildings Act, a co-owner's claim against another co-owner with respect to a section for common use may also be exercised against the special successor, and Article 18 of the Aggregate Buildings Act shall also be applied mutatis mutandis to the site of an aggregate building unless the co-ownership relationship and its nature are the same as that of the common use.

In light of the above legal principles, Nonparty 1 granted the sectional owner of the instant building the right to use the instant share free of charge. In addition, Nonparty 3, as well as the Plaintiff, who is the special successor of the instant share, bears the duty of the co-owners of the instant building to provide the Defendants, who are the owners of the exclusive ownership, to use the instant share free of charge.

Therefore, even if the Plaintiff is the owner of 81.6% shares among the instant land, it shall be deemed that the Defendants, the co-owner of the instant building, do not have the right to claim restitution of unjust enrichment or damages equivalent to the difference in their share ratios.

3. Conclusion

Therefore, it is decided as per Disposition by the Plaintiff (Appointed Party) on the ground that it is not reasonable to accept the claim of this case.

[List of Appointed, Attachment omitted]

Judges Song Jae-ho

1) The plaintiff et al. seems to use the term "legal site ownership" as the concept of "share corresponding to the legal site area" under the Building Act, not the concept of "legal site area" under the Aggregate Buildings Act.

In addition, according to Article 264 of the Civil Act, Article 264 of the Civil Act can not be changed without the consent of all co-owners. However, according to Articles 15 and 19 of the Aggregate Buildings Act, in order to change a site, a site can be changed regardless of the intention of some co-owners, since there is a consent of at least 3/4 of the sectional owners and voting rights.

3) The usage relation to a site of an aggregate building ought to be distinguished from the profit relation to a site of an aggregate building. According to Article 268(1) of the Civil Act, co-owners under the Civil Act may gain profit from the entire share of co-owned property, and according to Articles 17 and 19 of the Aggregate Buildings Act, co-owners of a section for common use or a site of an aggregate building may obtain profit from a section for common use or a site according to their share ratio. As such, in such profit relation, the Aggregate Buildings Act regulates the same content as the joint ownership provision under the Civil Act. Therefore, in cases where a person holding a right to claim compensation for damages or a claim for return of unjust enrichment against a person holding a right

In other words, Article 18 of the Aggregate Buildings Act does not apply mutatis mutandis to a person who specially succeeds to a share of a site without a section for exclusive use from a seller and a person who purchases only a section for exclusive use. Thus, only the owner of a section for exclusive use is obliged to return unjust enrichment related to the use of the site to the transferee (see Supreme Court Decision 91Da40177, Jun. 23, 1992).