[1] Whether a person, other than a sectional owner, has a right to a land which was owned as a site of an aggregate building from before the construction of an aggregate building, subject to the prohibition of separate disposition under Article 20 of the Act on the Ownership and Management of Aggregate Buildings (negative)

[2] The case holding that in case where a person, who was not a sectional owner, had a right to the land which was a site of an aggregate building before the construction of an aggregate building before the construction of an aggregate building and the provisional registration of the right to claim for transfer registration of ownership was put up for a public sale by the State pursuant to the disposition on default before the registration of transfer of ownership pursuant to the purchase and sale reservation, since the right to the land which was a site of an aggregate building before the construction of an aggregate building cannot be a right to use the site under the former Act on the Ownership and Management of Aggregate Buildings

[1] Article 20 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010) prohibits a separate disposition pursuant to Article 20 of the same Act is a right that a sectional owner has against a building site to own a section for exclusive use (see Article 2 Subparag. 6 of the same Act). Thus, a person who is not a sectional owner has against a land that became a site of an aggregate building regardless of a section for exclusive use from before the construction of an aggregate building is subject to a restriction on the prohibition of separate disposition under Article 20 of the same Act.

[2] In a case where the State constructed an aggregate building on the ground after concluding a pre-sale agreement and completing only the provisional registration of the right to claim ownership transfer registration pursuant thereto, but the State sold the land by the disposition on default prior to the registration of ownership transfer pursuant to the pre-sale agreement, the case holding that the State’s public sale of the said land does not go against the prohibition of separate disposition under Article 20 of the former Act on Ownership and Management of Condominium Buildings on the ground that the right which a person, who was not a sectional owner, prior to the construction of an aggregate building, owned as a site of an aggregate building regardless of the ownership of a section of exclusive ownership cannot be deemed as a right which a sectional owner owns to the site of a building in order to own the section of exclusive ownership.

[1] Article 2 subparagraph 6 and Article 20 of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 2010) / [2] Article 2 subparagraph 6 and Article 20 of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 201)

Plaintiff 1 and three others (Law Firm Hong, Attorneys Noh Young-hee et al., Counsel for the plaintiff-appellant)

Defendant

Korea

Seoul High Court Decision 2009Na62358 decided December 17, 2009

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

We examine the grounds of appeal.

Article 20 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter "the Aggregate Buildings Act") is a right that a sectional owner has against the site of a building to own a section for exclusive use (see Article 2 subparagraph 6 of the Aggregate Buildings Act). Thus, the right that a person who is not a sectional owner has against the land that became a site of an aggregate building regardless of the ownership of a section for exclusive use prior to the construction of an aggregate building is not subject to the restriction on the prohibition of separate disposal under Article 20 of the Aggregate Buildings Act.

According to the facts admitted by the court of first instance as cited by the court below, the non-party owned the land listed in paragraphs 1 and 2 of the attached list of the judgment of first instance (hereinafter “instant land”), and the non-party loans Co., Ltd. constructed an aggregate building on the ground after entering into a pre-sale agreement with the above non-party and completing only the provisional registration of the right to claim ownership transfer registration pursuant thereto. However, prior to the registration of transfer of ownership pursuant to the above pre-sale agreement, the non-party, prior to the registration of transfer of ownership pursuant to the above sales agreement, was subject to a public auction (hereinafter “instant public auction”).

In light of the above facts in light of the legal principles as seen earlier, the non-party's ownership of the land in this case cannot be deemed as the right to use the site of the building in order for the sectional owner to own the section of exclusive ownership. Thus, the public sale of this case by the defendant's assistant intervenor cannot be deemed as being contrary to the prohibition of separate disposal under Article 20 of the Aggregate Buildings Act.

Although the judgment of the court of first instance cited by the court below is inadequate in its reasoning, it is just in the conclusion that the public sale of this case is not contrary to the prohibition of separate disposition under Article 20 of the Aggregate Buildings Act, and there is no error of law such as misunderstanding of legal principles that affected the judgment, as

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.

Justices Kim Young-ran (Presiding Justice)