[1] In a case where a purchaser who purchased a section of exclusive ownership from a constructor of an aggregate building with a site ownership and completed the registration of ownership transfer as to that section of exclusive ownership did not complete the registration of ownership transfer as to the portion of land and public land equivalent to the right of exclusive ownership (affirmative)

[2] Whether the purchaser of the section for exclusive use acquires the ownership of the land and public land at the auction procedure based on the mortgage established on the section for exclusive use (affirmative in principle), and whether the section for exclusive use ceases to exist due to the sale of the section for exclusive use within the scope of the share of the land and public land established

[1] Unless there are special circumstances such as stipulated otherwise by the regulations or notarial deeds, a sectional owner’s right to use a site is recognized as in the aggregate building. Therefore, barring special circumstances such as where a sectional owner’s right to use a site exists, a purchaser who purchased a section of exclusive ownership from a constructor of an aggregate building who owns a site ownership and completed the registration of ownership transfer thereof shall acquire the ownership of a share in the site even if he/she did not complete the registration of transfer of land and public land equivalent to the right to use a site of an exclusive ownership (hereinafter “share in the site”).

[2] Since the effect of the mortgage established on only the section for exclusive use and the section for common use among the section for exclusive use and the section for common use (hereinafter “section for common use”) which belong to the same person does not extend to the share of the site, which is a accessory or accessory right, except as otherwise stipulated by the regulations or notarial deeds, the purchaser who purchased the section for exclusive use in the auction procedure based on the mortgage established on the section for exclusive use, acquired the ownership of the share of the site, and did not have any special sale condition that the purchaser shall take over the mortgage on the site in the auction procedure, even if the mortgage is established on the site prior to the establishment of the right to use the site for common use, it shall be extinguished by the sale within the scope of the share of the site, as it falls under the “mortgage on the sold real estate” under Article 91(2) of the Civil Execution Act. The acquisition of the ownership of the share of the site or the extinction of the mortgage established on the site for exclusive use does not change even if the appraised value of the share

[1] Article 20 (1) and (2) of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 20 (1) and (2) of the Act on the Ownership and Management of Aggregate Buildings, Article 91 (2) of the Civil Execution Act

[1] Supreme Court Decision 201Da11668 Decided February 10, 201, Supreme Court Decision 2011Da79210 Decided March 29, 201 / [2] Supreme Court Decision 2001Da22604 Decided September 4, 2001 (Gong2001Ha, 2170), Supreme Court Decision 2005Da15048 Decided March 13, 2008 (Gong2008Sang, 49)

Plaintiff

Seoul High Court Decision 2006Na14488 decided May 1, 200

Busan District Court Decision 2011Na24644 Decided October 12, 2012

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

We examine the grounds of appeal.

1. A sectional owner’s right to use a site in an aggregate building is recognized as indivisiblely indivisible with a section for exclusive use, barring special circumstances, such as otherwise stipulated by the regulations or notarial deeds (Article 20(1) and (2) of the Act on the Ownership and Management of Aggregate Buildings). The purchaser who purchased a section for exclusive use from the constructor of an aggregate building who has ownership and completed the registration of ownership transfer as to such section for exclusive use, shall acquire the ownership right to the site share even if he/she did not complete the registration of ownership transfer of the portion of land and public land equivalent to the right to use the site of the section for exclusive use (hereinafter referred to as “share in the site”), even if he/she did not acquire the ownership of the said section for exclusive use, referring to the Supreme Court Decisions 201Da1168 Decided February 10, 201; 201Da79210 Decided March 29, 2012, which held that only the portion for exclusive use and the portion for exclusive use among the lots for exclusive use were not determined by the purchaser in the auction procedure.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

① On August 13, 2003, the United Nations Development Co., Ltd. (hereinafter “UNFCCC”) completed the registration of creation of a neighboring mortgage to the Korean National Bank (hereinafter “National Bank”), which was owned by it, the mortgagee of the right to collateral security (hereinafter “instant site”) as a Korean National Bank (hereinafter “National Bank”).

② The United Nations Development newly built 15th floor neighborhood living facilities and one apartment house (hereinafter “instant apartment”) on the instant site, and on February 23, 2006, upon the commission of the provisional attachment entry registration, the registration of ownership preservation in the name of the UN academic development was completed on each of the instant apartment buildings, but the ownership registration was not completed.

③ Nonparty 1 purchased the instant apartment from the International University Development (hereinafter “the instant apartment section for exclusive use”) and completed on September 11, 2007 the registration of ownership transfer and the registration of the establishment of a neighboring mortgage with respect to the National Bank as a mortgagee.

④ At the voluntary auction procedure conducted with respect to the instant section for exclusive use upon the application of the National Bank, which is the right to collateral security, the Plaintiff purchased the instant section for exclusive use on May 20, 2009. In the said voluntary auction procedure, an appraisal was conducted only with respect to the instant section for exclusive use with the exception of the share of the site, and the assessed value of the share of the site was not reflected in the minimum sale price, and only the portion for exclusive use was indicated in the real estate indicated in the decision to permit sale.

⑤ On February 12, 2010, the Defendant purchased the instant section for exclusive use from the speculative system and completed the registration of ownership transfer thereof.

④ On the other hand, with respect to the instant site, the procedure of compulsory auction was initiated on March 5, 2009 at the request of the creditors of the United Nations Development, and the procedure of voluntary auction was initiated on June 1, 2009 at the request of the National Bank, a mortgagee, and the auction was initiated according to the prior compulsory auction procedure.

7) On March 31, 2010, Nonparty 2 purchased shares of 115.025/1,210.2 (the shares corresponding to the section for exclusive use in this case are 10.95/1,210.2 shares; hereinafter 10.95/1,210.2 shares; hereinafter hereinafter 10.95/1,210.2 shares) from the instant site on March 31, 2010. The Plaintiff purchased shares of 115.025/1,210.2 shares from Nonparty 2 and completed the registration of ownership transfer on April 7, 2010.

3. Examining these facts in light of the legal principles as seen earlier, in the instant case where no special circumstance exists, such as that the right to use the site was stipulated by the regulations or notarial deeds so that it can be separately disposed of, Nonparty 1 did not complete the registration of transfer regarding the instant shares, but Nonparty 1 acquired the ownership of the instant shares by purchasing the instant section of exclusive ownership from the International University Development, which was entitled to use the site as the owner of the instant land, and completing the registration of transfer of ownership thereof. By purchasing the section of exclusive ownership at an auction procedure based on the right to collateral security established on the instant section of exclusive ownership, the Defendant purchased the instant section of exclusive ownership from the Doctrine system and completed the registration of transfer of ownership thereof, thereby acquiring the ownership of each of the instant shares.

On the other hand, a compulsory auction conducted on the site of this case constitutes a compulsory execution against goods owned by another person, since the ownership of the share in this case was transferred to Nonparty 1 and the executory debtor was commenced for development. Thus, Nonparty 2, the purchaser in the compulsory auction procedure, cannot acquire ownership of the share in this case. Furthermore, with respect to the site of this case, there was a voluntary decision to commence the auction by the National Bank of Korea as a subsequent auction. However, in the auction procedure on the section for exclusive use of this case, unless there is any special sale condition that the purchaser would take over the mortgage of the National Bank as to the part for exclusive use of this case, the above collateral security by the National Bank was extinguished within the scope of the share in the site of this case. Since the purchaser cannot acquire ownership in the auction procedure on the extinguished collateral security, Nonparty 2, as the purchaser in the voluntary auction procedure, cannot acquire ownership of the share in this case.

Nevertheless, the court below accepted part of the plaintiff's claim on the premise that the plaintiff purchased the share in the site of this case from the non-party 2 and the defendant did not acquire the ownership of the share in the site of this case. It erred by misapprehending the legal principles on the acquisition, disposition and auction of the section of exclusive ownership in an aggregate building, thereby making a judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)