[1] In a case where the structural division between the sections of a building registered as a sectioned building ceases to exist, whether the ownership of a part of the building corresponding to such sectioned building (i.e., sharing of registration titleholders of the previous sectioned building) and whether the entire part of the building consisting of the remaining parts of the building is subject to the Act on the Ownership and Management of Condominium Buildings (affirmative) / Whether it is a matter concerning the management of common property to be determined by a majority of co-owners by determining the specific method of use and profit-making of common property among co-owners (affirmative)

[2] In a case where a minority right holder of the article jointly owned owns and uses all or part of the article jointly owned exclusively without consultation with other co-owners, whether another right holder may demand delivery of the article jointly owned as a preservation act of the article jointly owned (negative), and whether another right holder may demand the prohibition of removal of disturbance in the article jointly owned or interfering with the joint possession based on his/her right of share (affirmative)

[3] In a case where Gap corporation, which acquired the right to manage and lease the commercial building's facilities, removed the internal facilities of the 4th and the 5th floor without the consent of the entire sectional owners of the above commercial building, and removed the division among the divided stores by installing the 4th and the 5th floor, but Eul transferred the right to possess the part of the 4th floor and the 5th floor before the sectional owner's co-ownership without the consent of the majority of the co-ownership as to the section of exclusive ownership, and Byung, who acquired the right to own the part of the 4th floor as part of the 4th section of exclusive ownership, independently occupied and used the part of the 4th section of exclusive ownership, demanded Eul to deliver the part of the 4th floor and the 5th floor against Eul, which completed the registration of ownership transfer as to the 4th section of exclusive ownership, the case holding that Byung who is a minority right holder of the above exclusive ownership, may claim a prohibition of obstructing Eul who solely occupies the

[1] In a case where the structural division between a part of a building registered as a sectioned building ceases to exist, the part of the building corresponding to the sectioned building is owned by the titleholder of the previous sectional ownership. As the right to sectional ownership of the remaining sections of a sectional ownership whose structural independence is not lost is maintained, the part of the building is of a structure independent of the rest of the sections. In addition, since the joint ownership of a part of the aggregate building is naturally allowed, the entire building consisting of a part of the building and the rest of the sections of the aggregate building is governed by the Act on the Ownership and Management of Aggregate Buildings. Determination of detailed methods to use and benefit from the joint ownership among the co-owners should be made by a majority of the shares of co-owners.

[2] If a minority right holder of the article jointly owned owns and uses all or part of the article jointly owned exclusively without consultation with other co-owners, another minority right holder may not demand its delivery as an act of preserving the article jointly owned, but may demand the removal of interference with the article jointly owned or the prohibition of interfering with the possession of the article jointly owned, etc. based on his/her right of share.

[3] In a case where Gap corporation, who acquired the right to manage and lease the commercial building's facilities, removed the internal facilities of the 4th and the 5th floor without the consent of the entire sectional owners of the commercial building, and removed the division between the divided stores by installing a private house; Eul, who acquired the right to own the part of the 4th floor and the 5th floor before the sectional owners' co-ownership of the part of the 4th floor, solely occupied and used the part of the 4th section of the 4th section of the exclusive ownership without the consent of the majority of the co-ownership of the 5th section of the building; and Byung, who completed the registration of ownership transfer of the 4th floor of the 4th section of the 4th section of the 4th section of the exclusive ownership, sought to transfer the part of the 4th section of the 4th section of the 4th section of the exclusive ownership against Eul, the case holding that the sectional owners of the 4th section of the 4th section of the exclusive ownership, acquired the right to own ownership in proportion to the part.

[1] Article 1 of the Act on the Ownership and Management of Aggregate Buildings, Article 5 of the Addenda ( April 10, 1984), Articles 264 and 265 of the Civil Act / [2] Articles 211, 213, 214, 263, and 265 of the Civil Act / [3] Article 1 of the Act on the Ownership and Management of Aggregate Buildings, Article 5 of the Addenda ( April 10, 1984), Articles 211, 213, 214, 263, 264, and 265 of the Civil Act

[1] Supreme Court Decision 200Da33638, 33645 Decided November 27, 2001 (Gong2002Sang, 154) Supreme Court Decision 2012Da4985 Decided March 28, 2013 (Gong2013Sang, 744) / [2] Supreme Court en banc Decision 2018Da287522 Decided May 21, 2020 (Gong20Ha, 1198)

Plaintiff (Withdrawal)

J2 Development Co., Ltd. (Law Firm Marina, Attorneys Lee Jae-chul et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Dong LLC, Attorneys Credit stone et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2015Na40613 decided December 15, 2016

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Suwon District Court.

The grounds of appeal are examined.

1. Examining the reasoning and record of the lower judgment, the following facts are revealed.

A. The instant commercial building is part of one unit of a main complex building with the size of 5 underground floors and 19 floors above ground (from underground floors to 5 floors above ground) and is divided into several buildings for use and registered separately.

B. At the time of the registration of the preservation of the commercial building of this case, Nonparty 1, the representative director of the monthly Down, who acquired the facility management and the right to lease agency, removed the interior facilities of the 4,5th floor from August 15, 2002 to September 15, 2002 from the entire sectional owners of the commercial building of this case, and carried out the installation of bathing facilities to the 4th floor soup and the 5th floor, respectively. As a result, the division of each floor of the commercial building of this case was maintained, but the division between the sectional owners of the above facilities was abolished.

C. Since then, the fourth and fifth floors of the instant commercial buildings were operated and managed as the instant private house or facility.

D. On October 19, 2015, the Plaintiff’s succeeding intervenor obtained the registration of ownership transfer with respect to ten divided stores, including the fourth floor (No. 1 omitted) and (No. 2 omitted), among the instant commercial buildings from the Plaintiff.

E. around August 2008, the Defendant leased the part on the fourth floor of the instant commercial building from Nonparty 2 or Nonparty 3, the sectional owner, and around July 2012, acquired the right to lease of the said restaurant from Nonparty 4 who leased the part on the fourth floor of the instant commercial building from the sectional owner. Since around that time, the Defendant occupied and used the restaurant and the store among the fourth floor of the instant commercial building (hereinafter “the instant part on dispute”).

F. Of the instant commercial buildings, the area of the section for exclusive use on the fourth floor is 776.2584m2 and the number of sectional owners is 160m2. Of them, the Defendant obtained consent on the possession and use of the instant portion only from the sectional owners of seven stores (the total area of the section for exclusive use is 31.841m2).

2. Based on its stated reasoning, the lower court: (a) deemed the entire commercial building of this case as a single co-ownership; and (b) determined that “the Plaintiff’s succeeding intervenor acquired co-ownership rights to the entire commercial building of this case; and (c) the Plaintiff’s request for extradition against the part of the dispute of this case, which is a part of the fourth section of exclusive ownership, is permissible as an act of preserving the jointly-owned property; and (d) the Defendant cannot be deemed to have obtained the consent of a majority of co-ownership rights to the possession and use of

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. In a case where the division of structure becomes extinct between a part of a sectioned building registered as a sectioned building, the part of the building corresponding to the sectioned building is owned by the titleholder of registration of the previous sectioned building. As the right to divided ownership of the remaining sections whose structural independence has not been lost is maintained, the part of the building is of a structure independent of the rest of the divided buildings. In addition, since the joint ownership of a part of the aggregate building is naturally allowed, the entire building consisting of a part of the building and the rest of the divided building is governed by the Act on the Ownership and Management of Aggregate Buildings (see Supreme Court Decision 2012Da4985, Mar. 28, 2013). Determination of detailed methods for the use and profit-making of the joint ownership between the joint owners should be made by a majority of co-owners as to the management of the jointly owned property (see Supreme Court Decision 200Da3638, 33645, Nov. 27, 2001).

If a minority right holder of the jointly owned property exclusively occupies or uses all or part of the jointly owned property without consultation with other co-owners, another right holder may not demand its delivery as an act of preservation of the jointly owned property. However, another right holder may demand the prohibition of removal of interference with the jointly owned property or interference with the joint possession based on his/her own right to share (see Supreme Court en banc Decision 2018Da287522, May 21, 2020).

B. Examining the above facts in light of the above legal principles, the following is determined.

(1) Among the instant commercial buildings, the sectional owners in the instant private house or the instant facilities maintained the division between the divided stores, at least by which the division between the divided stores was abolished. As such, the existing sectional ownership is extinguished only for the divided section of exclusive ownership and one joint ownership is deemed to be a single joint ownership. Therefore, the sectional owners of the 4th sectional divided stores do not acquire the joint ownership right to the entire section of exclusive ownership of the instant commercial building, but only for the section of exclusive ownership, as the division was abolished, acquire the joint ownership right according to the ratio of sectional ownership at the time of extinguishment

(2) Without obtaining the consent of a majority of co-ownership as to the portion of exclusive ownership that was separated and abolished, the Defendant, who was transferred the right to possess from the co-ownership holder who was the sectional owner prior to the abolition of division, independently occupies and uses the part of the dispute of this case, which is part of the portion of exclusive ownership of the fourth floor, and the Defendant is in the same position as the lessor’s co-ownership and use independently. As such, the Plaintiff’s succeeding intervenor, who acquired the right to co-ownership according to the sectional ownership of the fourth floor (Sa room 1 omitted) and (Sa room 2 omitted), may demand the Defendant not to seek delivery of the part of the dispute of this case pursuant to the en banc Decision 2018Da287522, supra.

C. Therefore, the court below should have deliberated on whether the portion jointly owned was the section of the fourth and fifth floors or the section for exclusive use of the fourth and fifth floors, which was abolished by division due to the instant private letter or facility construction, and determined the scope of the exercise of rights and the scope of the act of preservation based on the co-ownership. However, the court below erred by misapprehending the legal principles on the scope of co-ownership relation of the partitioned building, the act of preserving and managing the jointly owned property, and the act of preserving and managing the jointly owned property, and failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment.

4. Therefore, without examining the remainder of the 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 Min You-sook (Presiding Justice)