A. Whether registration ability can be recognized for the section for common use presumed to be co-ownership under Article 215 of the Civil Act in a sectioned building

(b) Disposition of the sectional ownership of the section for exclusive use of a building and ownership of the sectional ownership of the section for common use with no registration capacity;

A. With respect to a section for common use presumed to be a co-ownership under Article 215 of the Civil Act in a sectioned building, the registration ability under the current Registration of Real Estate Act cannot be recognized for the section for common use of the building, except the section jointly owned by the special agreement of the sectional owner or the section for common use by the sectional owner.

B. The share in the section for common use presumed to be co-owned in sectional ownership cannot be the object of the disposition, and if the section for common use is disposed of, it can be the object of the disposition, unless there are special circumstances. If the section for common use is transferred, the share in the section for common use is naturally transferred from an indivisible relationship with it (it is an exception to the equitable principle on change in real rights without registration) and thus a purchaser of the share in the section for common use can seek confirmation of the share in the section for common use.

[Judgment of the court below]

Defendant

Busan District Court Decision 73Na107 delivered on June 12, 1974

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

1. The Civil Act provides that registration shall be required in accordance with the form principle as to the change in real rights, and the acquisition, loss, and transfer of real rights to real estate due to juristic acts, and the registration of real estate shall be required in the case where several persons own a part of the divided ownership in accordance with Articles 104 through 107, and the Registration of Real Estate Act takes into account only the registration of divided ownership, and there is no consideration as to the section for common use, so it cannot be said that registration is impossible under the current law as to the section for common use in the structure of the building except the section for the divided ownership or the section for common use which is jointly owned by a special agreement of the sectional owner, so it is presumed that the registration is not possible under the current law, so such section for common use is presumed to be jointly owned.

2. The presumption of the provisional sharing of Article 215 of the Civil Code with respect to the above section for common use is ultimately premised on the fact that the owners of the relevant division (exclusive part) can co-own such section for common use. Therefore, the relevant sectional owners should recognize the right of share with respect to such section for common use. Thus, the Civil Code does not recognize the right of share with respect to the part of the building for which the Registration of Real Estate Act does not recognize its registration ability, and therefore, it cannot be said that the right of share is recognized.

3. However, Article 215 of the Civil Act presumed that the section for common use is owned by the co-ownership without restriction such as sub-ownership (it is natural to take such measures) as to the disposition of the section for common use in sectional ownership (it is reasonable to assume that the above provision for common use is a common case, but it is reasonable to assume that the above provision for common use is based on the legal principle as to the relationship between the ownership and the ownership in order to secure the real profit of the sectional ownership. Thus, the shares presumed to be co-ownership should be in accordance with the relationship between the disposition of the sectional ownership in common use and the indivisible interest. Accordingly, the shares presumed to be co-ownership can only be subject to the disposition, unless there are special circumstances, and if the section for common use is disposed of, the shares for the section for common use should be transferred as a matter of course with the relationship between the disposal of the section for common use and the indivisible interest.

4. As above, the Civil Act recognizes the transfer of a section for common use, which is based on the form principle in the change of a real right, by its nature, may be accompanied by such transfer of a section for common use, but its own independent registration capacity is not recognized. As such, the Civil Act recognizes the exception of the form principle as to the change of a real right to at least the section for common use, which is clearly defined in the structure of the building, and recognizes the sharing of co-ownership by the related sectional owners. Therefore, if the exclusive ownership of the section for common use, which is in an indeterminate relationship with the section for common use, is transferred (i.e., the registration of the section for common use, if the exclusive use is transferred), it is reasonable to transfer the section (i.e. the registration of the section for common use) as a matter of course (in this case, the external clarity of the structure of the building for the ownership of the section for common use and the section for common use, and this legal principle also requires the separate form of ownership to be applied in cases where a part of the building is transferred to another person.

5. According to the records, the plaintiff is the second floor of the building attached to the annexed list of the original judgment, which is part of the building attached to the original judgment, and has a sectional ownership registration in the separate building. However, 4th 4th 4th 4th th th th 4th 4th th th th th th th th th th th th th th th th th 2 th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th th.

6. The plaintiff's conjunctive claim is clearly stated in the records that the purport of the plaintiff's conjunctive claim is to register the share of 1/2 of the above stairs. However, the plaintiff's conjunctive claim is against the share of the whole building of the above (1) as well as the stairs in this case, and it is obvious that the plaintiff's conjunctive claim is a claim for performance of the registration procedure which does not fit with the former, because it exceeds 1/2 of the above stairs, and the judgment of the court below is just and there is no ground for appeal

7. Next, the court below held that the provision of Article 215 of the Civil Act that presumed the section for common use as the co-ownership by the sectional owners in the building classification as to the plaintiff's cause of action during the exhibition should be adapt only to the case where the owner is unregistered and the owner is unknown, and that if the section for common use is registered as the defendant's ownership, it cannot be presumed to belong to the original and the defendant's co-ownership, and otherwise, it cannot be presumed to belong to the plaintiff's co-ownership, and that the plaintiff again acquired the right of interest in this case. However, the court below rejected the plaintiff's claim without making a judgment as to the existence of the above assertion under the Civil Act that the plaintiff cannot be deemed to have acquired the right of interest in the stairs under the Civil Act that takes the form of real right change because the cause of acquisition is a juristic act and

1. However, according to the records, the plaintiff merely tried to support the legitimacy of the plaintiff's assertion on the ground of the presumption of sharing the same article, and it cannot be said that the purport of the claim for this case is to be based on the presumption of sharing the above article, and it is evident that when the defendant purchases the above part of the building from the defendant, it is the purport of seeking confirmation of the right of share purchased on the ground that the right of share of 1/2 of the common area of this case was also purchased at the same time and the right of share purchased at the same time. Thus, the court below rejected the plaintiff's assertion, which only added the presumption of sharing under Article 215 of the Civil

2. The plaintiff's owner appears to the purport of the whole purport to the effect that the part of the above stairs 4pbebbebbebbeb, the structure of the building in this case, or the part (1) and (2) were the common area from the original point of view as the circumstance where the part of the building was separated. The court below decided that the part was the common area from the original point of view without the plaintiff's explanation of the reasons such as sub-paragraph (1) and (2). The court below rejected the plaintiff's assertion that the plaintiff acquired 1th share in the part of this case on the ground that the Civil Code takes the form of a real right, but the court below rejected the plaintiff's claim that the part of this case's 4pbebbebbeb, the building was the common area located on the boundary of the part of the building in this case, and that the above part was the common area located in this case's 4pbebbebbebbeb, and it is clear that the plaintiff's ability to purchase the part from the above defendant's construction.

Therefore, the appeal pointing this out is with merit, and the original judgment is reversed in accordance with Articles 400 and 406 (1) of the Civil Procedure Act, and the case is remanded to the Busan District Court Panel Division which is the original judgment. It is so decided as per Disposition by the assent of all participating judges.

Justices Hong Man-hee (Presiding Justice)