[1] Where an aggregate building constructor who has a right to use a site completes the registration of ownership transfer only with respect to a sectioned building without registering the right to a site, whether the current owner of a sectioned building can seek implementation of the procedure for registration of ownership change based on Article 60-2 of the former Enforcement Rule of the Registration of Real Estate Act

[2] In a case where Gap et al. newly constructed a building on the land owned by it, including one household which is a non-existent section while constructing a building on the land owned by it, and make a registration of preservation of ownership as to the section for exclusive use by Gap et al., and register the entire site ownership according to the total of 10 households' size ratio while registering the site ownership, and Eul et al. et al. sought procedure for registration of change of a site ownership against Gap et al., the case holding that the present owner of a sectioned building, including Eul et al. filed an application for registration of change of a site ownership under his own name as to the portion corresponding to the size ratio of each of his respective sections for exclusive use among the pertinent co-owned shares jointly with the building owner et al. or against them, and at the same time, the above application can not be filed as a lawsuit for registration of change of site ownership

[1] Article 60 (1) and (3) of the Registration of Real Estate Act, Article 60-2 of the former Enforcement Rule of the Registration of Real Estate Act (amended by the Regulations on the Registration of Real Estate, No. 2025 of May 30, 2006) / [2] Article 60 (1) and (3) of the Registration of Real Estate Act, Article 21 of the Act on the Ownership and Management of Aggregate Buildings, Articles 91 (3) and 94 (1) of the Registration of Real Estate Act

[1] Supreme Court Decision 2007Da45777 decided September 11, 2008 (Gong2008Ha, 1355)

Plaintiff (Appointed Party)

Defendant 1 and four others

The Intervenor to the acceptance of the real estate trust

Seoul Central District Court Decision 2018Na31902 Decided October 25, 2019

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined.

1. Where a constructor of an aggregate building has a right to use a site and completes the registration of ownership transfer only for a sectioned building without registering a right to a site, the current owner of a sectioned building may apply for the registration of ownership transfer jointly with the constructor, and at the same time with the above application (see Article 60(1) and (3) of the Registration of Real Estate Act). Therefore, the current owner of a sectioned building may file an application for the registration of ownership transfer of a right to use a site with the constructor under Article 60(1) of the Registration of Real Estate Act, apart from the fact that he/she may file an application for the registration of ownership transfer of a building owner's right to use a site under Article 60(1) of the Registration of Real Estate Act, which was deleted as the Enforcement Rule of the Registration of Real Estate Act was amended by Supreme Court Decision 2025, May 30, 2006 (see Supreme Court Decision 2007Da45777, Sept. 11, 2008).

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, although the lower court partially inappropriate, the lower court did not err by either violating the court’s duty of explanation or by misapprehending relevant legal principles, which affected the conclusion of the judgment, contrary to what is alleged in the grounds of appeal.

2. A. The record reveals the following facts.

1) Defendant 1 and the deceased non-party 1 newly built the instant building on the instant land owned by them. Despite having been nine households, it included No. 402, which is the section for exclusive use that does not exist on June 11, 1992, and registered the ownership ratio of each section for exclusive use in proportion to the total size of ten households, with respect to the section for exclusive use that does not exist on June 11, 1992. The ownership ratio of each section for exclusive use was registered in proportion to the size of each section for exclusive use by ten households.

2) On November 12, 2002, Defendant 1 and deceased Nonparty 1 sold each section of exclusive ownership of the instant building to Nonparty 2 and completed the registration of ownership transfer on December 13, 2002.

3) Of the present owners of a partitioned building, the Plaintiff (Appointed Party) and the designated parties (hereinafter “Plaintiffs (Appointed Party”) filed a claim against Nonparty 2, the buyer of the first instance trial, who is the buyer under Article 402, to register the cancellation of the transfer of ownership in the name, and received a favorable judgment, and filed a claim against Defendant 2, Defendant 3, Defendant 4 (hereinafter “Defendant 1, etc.”) and Nonparty 2, the heir of Defendant 1 and the deceased Nonparty 1, who are the co-defendant 1, but filed a claim for the registration of destruction of the building under Article 402, but if there is no registration of the nonexistent building, the owner of the site of the building may file an application for the registration of destruction by subrogation of the registered titleholder of the ownership (see Article 44(1) and (2) of the Registration of Real Estate Act). Thus, the above judgment became final and conclusive by taking account of the fact that there is no benefit to seek the implementation of the registration procedure for destruction by litigation.

B. In light of these facts, the registration of transfer of ownership in the name of the co-defendant 2 of the first instance trial as to No. 402 was cancelled pursuant to the judgment of the first instance court, and if the registration of destruction is a partitioned building with no exception to No. 402 and the registration of destruction is made, the registrar ex officio makes ex officio a registration of correction of the meaning of cancelling part of the relevant co-ownership registered as a site ownership in the registration record of the land in this case (see Articles 91(3) and 94(1) of the Real Estate Registration Rules), but Defendant 1, etc., who is the constructor of the building in this case, cannot claim the relevant co-ownership right against the sectional owner as long as the entire ownership of the building in this case has already been established as a site ownership (see, e.g., Supreme Court Decisions 2013Da33577, Nov. 4, 2013; 2018Da219727, Dec. 28, 2018).

Therefore, in this case, the current owners of a partitioned building, including the plaintiff (appointed party) can file an application for registration of transfer in their own name with the defendant 1, who is the constructor, jointly or by judgment against them with regard to the share corresponding to the ratio of the size of their respective sections of exclusive ownership among the pertinent co-ownership, and at the same time, file an application for registration of change of site ownership indication as to the ratio of their respective sections of exclusive ownership (Article 60(1) and (3) of the Registration of Real Estate Act and Article 21 of the Act on the Ownership and Management

3. Therefore, all 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.

[Separate] List of Appointors: Omitted

Justices Kwon Soon-il (Presiding Justice)