A. Method of partition of co-owned property;

(b) Method of dividing land in kind;

(c) Division methods to adjust the excess or excess of the economic value in money and some co-owners shall be entitled to pay for the division method remaining as sharing;

A. In the case of dividing the jointly-owned property through a trial, the court is in principle dividing it in kind, and the auction can be ordered only when the value of the property is likely to be reduced remarkably if it is impossible to divide it in kind or it is possible to divide it in kind. Thus, barring the above circumstances, the court shall render a judgment that recognizes the sole ownership of each co-owner for the goods divided in kind according to the ratio of shares of each co-owner, and the method of division is a reasonable division according to the ratio of shares of co-owner according to the co-owner's share, regardless of the method requested by the parties, according to the co-owner's common relation or the overall situation of the goods which are the objects of the co-ownership at the discretion of the court. Here, the method of division is according to the ratio of shares.

(b) In the case of land partitioning, in principle, the area of land acquired by each co-owner should be equal to the ratio of the co-owner's share; however, if the form, location, use or economic value of the land is not equal, it is also allowed to divide the economic value in proportion to the ratio of shares in consideration of such overall circumstances as above.

(c) If certain requirements are met, it is permitted to divide between co-owners by adjusting the excess or excess of their economic value in cash. If the goods jointly owned by many people are divided in kind, the remaining co-owners who do not want the division are allowed by way of co-ownership.

Article 269 of the Civil Act

A.B. (c) Supreme Court Decision 91Da2728 delivered on November 12, 1991 (Gong1992, 102).B. Supreme Court Decision 92Da30603 delivered on January 19, 1993 (Gong1993Sang, 720). Supreme Court Decision 92Da39105 delivered on November 10, 1992 (Gong193Sang, 945 delivered on August 27, 1993). Supreme Court Decision 90Da7620 delivered on August 28, 1990 (Gong190, 2015).

Plaintiff

Defendant 1 and two Defendants (Attorney Lee Gyeong-hee, Counsel for the defendant-appellant)

Daegu District Court Decision 91Na3596 delivered on April 28, 1993

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

Each of the grounds of appeal by the plaintiff and the defendants shall be examined together.

1. According to the reasoning of the judgment below, in this case where both the Plaintiff and the Defendants wish to divide in kind, the court below determined that the forest of this case is reasonable to divide in kind rather than dividing in kind the forest of this case, in full view of the above circumstances and other circumstances shown in the arguments in this case, since the forest of this case ( Address omitted) is located within the forest of this case (number 25,273 square meters) and the land of this case, the market price of which is approximately KRW 260,000,000 per square meter as a general residential area under urban planning, and (B) part 19,994 square meters per square meter, a natural green-belt area of which is about KRW 11,00,000 per square meter per square meter.

2. Division of the co-owned property may be decided at will if the co-owners reach an agreement, but if the co-owners fail to reach an agreement, if the co-owned property is divided by a judgment, the court shall divide it in kind in principle. The court may order the auction of the goods only when it is impossible to divide it in kind or when the value is significantly decreased if it is divided in kind. Thus, barring the above circumstances, the court shall decide to recognize the sole ownership of each co-owner for the divided property by dividing the jointly-owned property into several goods in kind in accordance with the ratio of shares of each co-owner, and the method of division shall not be decided by the parties, but shall be reasonably divided according to the ratio of shares of co-owners depending on the relation of co-ownership or all the conditions of the goods belonging to the said property at the discretion of the court. Here, the ratio of co-ownership refers to the value according to the ratio of shares.

Therefore, in the case of dividing land, in principle, the area of land acquired by each co-owner should be equal to the ratio of the co-owner's share; however, it is not always possible to divide the economic value to correspond to the ratio of shares if the form, location, utilization situation, or economic value of the land is not equal, taking into account the overall circumstances. If certain requirements are met, it is allowed to divide the land by adjusting the economic value of the land between the co-owners in cash. If the goods jointly owned are divided in kind, the remaining co-owners who do not want the division are allowed to jointly owned should also be allowed (see, e.g., Supreme Court Decisions 90Meu7620, Aug. 28, 1990; 91Da2728, Nov. 12, 1991).

3. In light of the circumstances that it is difficult to divide the forest of this case into the form of kind, the lower court deems that (a) part 5,279 square meters in the original adjudication is a general residential area in the urban planning and the market price of which is approximately KRW 260,00 per square meter; (b) the area of the forest of this case is about KRW 11,00 per square meter in the natural green area and the market price of which is about KRW 11,00 per square meter; and (c) the above portion of the farmland of this case is 29 square meters in the above above ground, including the Defendants’ advance seedlings. However, it seems difficult to conclude that the circumstance cited by the lower court alone alone is insufficient to divide the forest of this case into the form of kind, or that the value of the forest of this case is reduced due to the spot subdivision, if the Defendants’ substitute tombs exist on the ground, it may be a single reason to divide the forest of this case in kind, and it is difficult to view the area of the forest of this case as the area of this case as 25,273 square meters.

If (a) and (b) are the land with the above wide size, and if there is a remarkable difference between the prices of the parts in (a) and (b), it is questionable whether it is difficult to divide the economic value into spot goods so as to correspond to the ratio of shares in light of the shape of the forest of this case and the situation of the use thereof even if the respective parts in (a) or (b) are different from the parts in kind from the parts in (a) and (b) respectively, and each part in (b) are different, and if there is a difference in prices depending on the location of the respective parts in (a) or (b). If the Defendants do not want the division among themselves, the Defendants can divide into parts only with the Plaintiff, and if so, it would be more easy to divide the parts in kind with the Plaintiff as co-owners.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the partition of co-owned property by judgment, and all the arguments are with merit.

Therefore, the judgment of the court below shall be reversed and remanded, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)