[1] Whether the co-owners of a small number of shares may seek the exclusion of possession against the possessor who has obtained permission from the co-owners of the majority shares for use and profit-making (negative)

[2] Whether the possessor who obtained permission from the co-owners of a majority share to use or make profits from a specific part of the jointly owned property can be deemed to have obtained profits from the possession of the minority right holder without any legal ground (negative)

[1] The detailed method for the use and profit-making of the common property among the co-owners shall be determined by a majority of co-owners' shares as matters concerning the management of the common property, and even if there was no agreement with other co-owners on the method of management of the common property in advance, the matters concerning the management of the common property can be independently determined. Thus, the determination by a majority of co-owners of the common property to exclusively use and profit-making from the common property is lawful as the method of management of the common property. Thus, the minority co-owners of the common property cannot seek the removal or removal of possession against the possessor who has obtained permission for use and profit-making from the majority of the common property.

[2] A co-owner of a majority share may independently determine matters concerning the management of the jointly owned property even if there was no agreement on the method of management of the jointly owned property in advance with the co-owner. As such, a co-owner of the majority share is the method of management of the jointly owned property and can exclusively use and profit from one part of the co-owned property. However, due to that, he/she is obligated to return the share to a minority share holder who suffered losses because he/she did not make any use or profit from the specific part. Therefore, he/she is obligated to return the share because he/she made unjust enrichment equivalent to the rent corresponding to the share. However, the possession of a third party who has been permitted to use or profit from the specific part by the co-owner of the majority share is a legitimate possession based on the right of management of the majority share holder. Thus, the third party cannot be deemed to gain profit from the possession of the majority

[1] Article 265 of the Civil Code / [2] Articles 265 and 741 of the Civil Code

[1] Supreme Court Decision 90Da20220 decided Apr. 12, 1991 (Gong1991, 1374), Supreme Court Decision 88Meu33855 decided Sept. 24, 1991 (Gong1991, 2590), Supreme Court Decision 95Da24586 decided Sept. 5, 1995 (Gong1995Ha, 3359), Supreme Court Decision 2000Da33638, 33645 decided Nov. 27, 2001 (Gong202Sang, 154)

Plaintiff (Attorney Park Sang-sung, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm LLC, Attorneys Lee Young-hoon et al., Counsel for the defendant-appellant)

Seoul District Court Decision 2001Na4650 delivered on January 9, 2002

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

The grounds of appeal are examined.

1. As to the claim against Defendant 1 for removal and the claim against Defendant 2 for removal

A. The court below is just in rejecting the plaintiff's assertion that the registration of ownership transfer in the non-party 2 with respect to the non-party 43/81 share out of the site of this case transferred by the non-party 1 pursuant to the former Act on Special Measures for the Registration, etc. of Ownership Transfer (Act No. 4502, effective) is based on the cancellation of title trust, and it is not erroneous in the misapprehension of the legal principles as to the misconception of facts or the registration of title trust due to the violation of the rules of evidence

B. Determination of the specific method for the use and profit-making of the common property among the co-owners shall be determined by a majority of co-owners' shares as matters concerning the management of the common property, and even if there was no prior consultation with other co-owners on the method of management of the common property, it is possible to independently determine matters concerning the management of the common property. Thus, determination by a majority of co-owners to exclusively use and profit-making from the common property is lawful as the method of management of the common property. Thus, as to the possessor who has obtained permission for use and profit-making from the co-owners of the majority share, the minority co-owners of the common property cannot seek the exclusion of possession, such as the removal or removal of the building used and profit-making by the possessor (see, e.g., Supreme Court Decision 200Da33638, 33645, Nov. 27,

The court below, based on its adopted evidence, acknowledged that Defendant 1 was permitted from Nonparty 1, the co-owner of the majority of the site of this case to use and profit from the above site on July 2, 199, and Defendant 2 was occupied and used by leasing the above building on the above site from Defendant 1, and determined that the plaintiff as co-owner of the minority shares could not seek removal of the above building or removal from the building from the above building. In light of relevant evidence and records and the above legal principles, the court below's above recognition and determination are just and acceptable, and there were no errors of law such as misunderstanding of facts against the rules of evidence, misunderstanding of legal principles as to disposal authority, and violation of law, as alleged in the grounds of appeal. This part of the grounds of appeal cannot be accepted.

C. The Plaintiff asserted that the transfer registration of equity in the name of Nonparty 1 constitutes a weak meaning of transfer for security, and that it does not go through the settlement procedure, and that the secured debt has ceased to exist due to the lapse of prescription or repayment, etc., and thus, Nonparty 1 is not a legitimate equity right holder. However, this cannot be a legitimate ground for appeal as it was newly asserted at the trial. This part of the grounds for appeal cannot be accepted.

2. As to the claim for restitution of unjust enrichment against Defendant 1

As seen earlier, co-owners of a majority share can independently determine matters concerning the management of the jointly owned property even if there was no agreement on the method of management of the jointly owned property in advance with co-owners. As such, co-owners of a majority share are methods of management of the jointly owned property, and can exclusively use and benefit from one part of the co-owner's specific co-owned property. However, as a result, the share is generated, but the minority right holders who suffered losses due to their failure to use and benefit from the specific part, are obliged to return unjust enrichment equivalent to their share. However, the possession of a third party who again obtained permission from the majority share co-owners to use and benefit from the specific part is a legitimate possession based on the right to manage the jointly owned property by the majority share holders. Thus, the third party cannot be deemed to gain benefit from the possession of the minority share right holders without any legal ground.

The court below is just in light of the above legal principles in holding that the non-party 1, who is a majority equity right holder, was not obligated to return unjust enrichment from July 2, 199, upon permission for use and profit-making by the non-party 1, who is a majority equity right holder, was not obligated to return unjust enrichment, and there is no error of law in misunderstanding legal principles

3. Therefore, all of the Plaintiff’s appeals are 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 on the bench.

Justices Seo-sung (Presiding Justice)