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The judgment below is reversed and the case is remanded to Seoul High Court.
Reasons
Judgment ex officio is made.
1. According to the reasoning of the judgment below, the land which is the subject of the partition of co-owned property of this case is about 20 meters in vertical length and about 30 meters in vertical length, and one vertical length is adjacent to the road.
For the reasons indicated in its reasoning, the lower court divided the instant land into two parts in the direction that the area after dividing the two parts into 331 square meters, respectively, and divided one of them into the Plaintiff’s ownership [31 square meters in part] and the remainder [31 square meters in part] of the attached Form 1 drawing (A) of the original judgment, which was put up for auction and distributed to the Defendants the remaining amount after deducting the auction cost from the proceeds thereof at the rate of 1/2, respectively.
2. However, according to the evidence and the record, such as evidence as evidence No. 1, No. 2, No. 7, and No. 8, and records, even though part of 12 square meters of the instant land was divided and registered as a subdivision during the proceeding of the first instance trial, the lower court can find the fact that the entire land of this case is divided and the entire land of this case is subject to partition. If the divided 12 square meters of land was exceeded in the co-ownership relation between the Plaintiff and the Defendants, it is obvious that it cannot be subject to partition of co-owned property.
Even if the co-ownership relationship is maintained, there is sufficient possibility that the lower court would have selected another method of partition according to the circumstances and purpose of the division, location of the divided land, the use situation after the division, etc. if part of the land was not much divided.
Therefore, the lower court should have deliberated on the subject matter and the method of subdivision by examining the details of subdivision, ownership change, use status after subdivision, etc. of part of the land during the litigation process without having been rejected by the Plaintiff.
Nevertheless, it does not reach this point.