The meaning of "if the value of the article jointly owned is likely to be reduced remarkably due to the division" if the price is to be paid in full.

If the value of the article jointly owned is significantly reduced due to the in-kind division as stipulated in Article 269(2) of the Civil Code, it shall include not only the case where the exchange value of the article jointly owned is significantly reduced due to the in-kind division, but also the case where the value of the part to be owned by the owner solely due to the in-kind division is significantly reduced compared to the share value of the article before the in-kind division. Thus, even if the in-kind division can be made formally, the article should be divided not by the in-kind division but also by the method of the in-kind division if it can not be made fairly in-kind division according to the location, area and surrounding area of the article jointly owned, its surrounding area, use value, price, and share ratio of each co-owner.

Article 269 of the Civil Act

Supreme Court Decision 79Da1131, 1132 Decided September 9, 1980

Plaintiff

Defendant

Daegu High Court Decision 83Na1315 delivered on April 27, 1984

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The defendant's grounds of appeal are examined.

The partition of co-owned property by judgment shall be divided in kind, in principle, if it is impossible to divide in kind or in kind, or if it is possible in form, if the price is likely to decrease substantially, the auction of the co-owned property pursuant to the provisions of Article 269(2) of the Civil Code, and the price of the co-owned property shall be reduced remarkably due to the in-kind division. Here, the price of the co-owned property shall be reduced remarkably due to the in-kind division as well as the case where the exchange value of the whole co-owned property is considerably reduced considerably due to the in-kind division, and even if the co-owner is not paid in kind, if the value of the part to be owned independently due to the in-kind division is significantly reduced considerably than the share price in the co-owned property before the partition of co-owned property. Thus, even if the in-kind division is possible, if each co-owner's share can not be divided in kind in consideration of the location, area and surrounding situation, use value, price, share ratio of each co-owner's ownership and use status, etc.

However, according to the records, the land category in the public register is the entire land category, but its current status remains 15 meters in South and North Korea and 96 meters in Eastwest, and the area of the land is 1,519 square meters in parallel and is connected to the roads with 8 meters and 4 meters in parallel, and the original and the defendant shares the above land at the ratio of 2:15 meters in proportion to the above land. If the above land is divided into South and North Korea as alleged by the defendant, the width of the land to be reverted to the plaintiff is too narrow and so its use value is considerably reduced, and if it is divided into the above land as alleged by the plaintiff, the wide land to be reverted to the defendant can only be used as a road in one side, and its use value is significantly reduced, and in such case, it is not considered that there is a fair division method to the original and the defendant, and in such a case, it should be completed not by the method of the spot division but by the method of the price division.

However, the court below did not make a deliberation and determination as to whether it is possible to divide the goods in kind without causing losses of the land price of this case and by fair methods to the original and the defendant, and ordered the division in kind in the same manner as the original decision as the plaintiff asserted by the plaintiff. In this regard, the court below erred by misapprehending the legal principles as to the partition of co-owned property, failing to properly examine whether it is appropriate to divide the goods in kind at the original decision, and thereby affecting the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Jong-sung (Presiding Justice)