[1] Requirements for establishing a sectional co-ownership relationship

[2] The case holding that in a case where the sales contract was concluded in the form of a divided sale while selling most of the forest land on one parcel, but the buyer’s failure to pay the purchase price was terminated, it cannot be deemed that there was a conclusive agreement and establishment between the seller and the buyer on the establishment of a sectionally owned co-ownership relationship at the time of signing the contract

[3] In a case where a specific sale and purchase of part of a parcel of land and a registration therefor have completed the registration of co-ownership transfer, whether a sectionally owned co-ownership relationship is established (affirmative with qualification)

[1] A sectionally owned co-ownership relationship is legally established only when there is an agreement for specifying the location and area of a parcel of land and for many persons to divide them into sectional ownership. Even in cases where co-owners agreed to divide the jointly owned property and have occupied and used each part by specifying the sectionally owned part from that time, a sectionally owned co-ownership relationship may be established. However, in cases where co-owners did not reach an agreement for the exclusive reversion of a specific portion to each co-owner, there is no room to establish such a relationship.

[2] The case holding that in a case where the sales contract was concluded in the form of a divided sale while selling most of the forest land on one parcel, but the buyer’s failure to pay the purchase price was terminated, it cannot be deemed that there was a conclusive agreement and establishment between the seller and the buyer on the establishment of a sectionally owned co-ownership relationship at the time of signing the contract

[3] In the formation of a sectional co-ownership relationship, if a specific sale and purchase of part of the land of one parcel and the registration for the registration for the transfer of co-ownership have been completed, a mutual title trust agreement for each part of sectional ownership can be deemed to exist. However, even in that case, there is a mutual agreement between the parties as to the basic facts that the sectional ownership is divided by specifying the location and area of the land and purchasing it.

[1] Article 103 of the Civil Act / [title trust] Articles 262, and 268 (1) of the Civil Act / [2] Article 103 of the Civil Act / [title trust] Articles 262, and 268 (1) of the Civil Act / [3] Article 103 of the Civil Act / [title trust] Articles 262, and 268 (1) of the Civil Act

[1] [3] Supreme Court Decision 2004Da71409 Decided April 29, 2005 (Gong2005Sang, 824) Supreme Court Decision 2005Da55930 Decided April 13, 2007

Plaintiff

Defendant 1 and 63 others (Attorney Park Young-ok, Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na56694 decided May 20, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 through 4

A sectionally owned co-ownership relationship is legally established only when there is an agreement with many persons to specify the location and area of a parcel of land to divide the co-owners into sectional ownership. Even in cases where co-owners agreed to divide the jointly owned property and have occupied and used each part by specifying the sectional ownership from that time, a sectionally owned co-ownership relationship may be established. However, in cases where co-owners did not reach an agreement with each other to exclusively vest the specific portion among the co-owners, such relationship is not established (see Supreme Court Decision 2004Da71409, Apr. 29, 2005, etc.).

According to the reasoning of the judgment below, the court below rejected the Defendants’ part of the above land out of the above land is difficult to be seen as having been divided into the following circumstances, i.e., the Plaintiff’s owner of the instant land and its purchaser’s new L&C Korea (hereinafter “new L&C Korea”), based on the first, second, and third contracts, since the Plaintiff sold 22,00 square meters of the entire forest of this case to New L&C Korea, which is almost 22,200 square meters, in fact, the Plaintiff’s use and profit-making part of the forest of this case is nonexistent at the time of the above contract. In light of the fact that it is difficult to view the Defendants’ separate ownership of the land of this case from the above land in the process of changing the terms and conditions of the contract between the Plaintiff and the Defendants’ new ownership ownership of the land of this case and the remaining part of the land of this case for which the Defendants had no separate ownership of the land of this case for the purpose of sale and purchase, the total amount of the land is always identical to the Plaintiff’s new ownership.

As revealed in the above legal principles, facts acknowledged by the court below, and records, it is difficult to view that the principal intent of both the plaintiff and new L&C Korea was to trade ownership of the entire forest of this case in the process of a contract over three occasions, and that the transfer registration was made on the premise of the above circumstances, and it is difficult to view that the procedure for subdivision and payment of share was made separately in preparation for the cancellation of a sales contract on the north side part. Rather, this can be interpreted to the extent of prior agreement on the division of the jointly owned property in preparation for the actual occurrence of the household situation, such as partial default of payment of purchase and sale, and as such, it is difficult to view that the transfer registration made in the process of performing the entire forest of this case was in accordance with the pre-determined divided ownership of the specific part, as the contract was cancelled, and that the purchase price is determined on the basis of the area regardless of the location of the divided part, as alleged by the plaintiff at the time of signing each contract over the above three occasions, it is difficult to view that the plaintiff and new L&C Korea agreed with the intent.

In addition, unlike the Plaintiff’s assertion, in each sales contract between the new L&C Korea and the Defendants, most of the Defendants’ sales contracts include only the size of each purchase, and as long as the specific parts as indicated in the provisional division are not indicated, it is difficult to view the provisional division as incorporated into the content of the sales contract. The fact that the provisional division was also referred to as a total of 83 parts in a voluntary manner without going through the survey procedure without going through the survey at the time of the above sales contract is difficult to deem that there was an intention to establish a conclusive sectional co-ownership relation according to the provisional division in its location and boundary. Furthermore, in full view of the circumstances revealed in the record, including the fact that the sales contract between the new L&C Korea and the Defendants did not recognize at all the Plaintiff’s sectional co-ownership right as to the north of the forest of this case, it is difficult to view the sales contract between the new L&C Korea and the Defendants as the content of the sectional co-ownership relation or the succession of sectionally owned co-ownership relation with the Plaintiff.

If so, the court below's decision rejecting the plaintiff's primary claim is somewhat lacking in its reasoning, but its conclusion is justified.

The judgment of the court below is not erroneous in the misapprehension of legal principles as to sectionally owned co-ownership relation and the lack of reasoning, etc.

The answer presented in the ground of appeal by some defendants as consistent with the plaintiff's argument by the plaintiff cannot be viewed as a confession in a lawsuit because they dispute the plaintiff's argument in its overall purport. The fact of signing a written confirmation by some defendants is not sufficient evidence to acknowledge that the relationship between the plaintiff and the defendants exists, and the court below's rejection of the plaintiff's main claim is also included in the purport of rejecting the plaintiff's argument as to this point, and there is no error of omission of judgment.

In addition, in the establishment of sectional co-ownership relationship, if a specific sale and purchase of part of the land of one parcel and the registration for the transfer of co-ownership have been completed, a mutual title trust agreement for each sectional ownership can be deemed to exist. However, even in that case, as to the basic facts that the sectional ownership is divided by specifying the location and area of the land and by purchasing it, there should be mutual agreement with each other (see, e.g., Supreme Court Decisions 2004Da71409, Apr. 29, 2005; 2005Da55930, Apr. 13, 2007). Accordingly, there is no reason for appeal to the same effect.

The remainder of the grounds of appeal in this part is merely the purport of disputing the preparation of evidence and fact-finding belonging to the exclusive jurisdiction of the fact-finding court, which is the court below, and thus does not constitute legitimate grounds

2. Regarding ground of appeal No. 5

The lower court rejected the Plaintiff’s conjunctive claim seeking cancellation of each share transfer registration in the name of the Defendants on the north side of the instant forest, on the premise that the Defendants purchased each specific part of the instant forest inasmuch as it is difficult to recognize that the Defendants purchased the said specific part of the said provisional partition from the new L&W Korea, on the grounds that each share transfer registration completed by the Defendants pursuant to the sales contract with the new L&W Korea ought to have effect on the entire forest of this case.

As examined in the ground of appeal as to the main claim above, unless the court below erred in the fact-finding which is the premise of its judgment, this part of the judgment of the court below is also justified.

The court below did not err in the misapprehension of the rules of evidence, the empirical rule, the incomplete hearing, or the misapprehension of the legal principle, which affected the conclusion.

3. Conclusion

Therefore, the appeal is 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.

Justices Yang Chang-soo (Presiding Justice)