[1] Whether each sectional owner of an aggregate building can use the entire site of a building according to the purpose of use (affirmative in principle), and in this case, whether the “site of a building” includes all the land of a unit where an aggregate building is located (affirmative in principle)

[2] In a case where a seller of an aggregate building transfers the ownership of a section of exclusive ownership to a sectional owner, and the site is registered for the transfer of ownership only for a certain portion and leaves the remainder in his/her name, whether the purchaser or transferee of the ownership can claim the co-ownership right against the sectional owner (affirmative with qualification)

[3] In a case where Gap completed the registration of ownership transfer for some of the shares in the site while selling an aggregate building in lots and left the remaining shares to the buyers, but Eul et al. acquired the remaining shares in the public sale procedure, the case holding that Eul et al. cannot file a claim for return of unjust enrichment against the sectional owners on the ground of the above shares since the ownership transfer registration completed on the ground of a public sale is null

[1] Article 2 subparags. 5 and 6, Article 4(1) of the Act on the Ownership and Management of Aggregate Buildings, Article 263 of the Civil Act / [2] Article 20 of the Act on the Ownership and Management of Aggregate Buildings / [3] Article 2 subparags. 5 and 6, Articles 4(1) and 20 of the Act on the Ownership and Management of Aggregate Buildings, Articles 263 and 741 of the Civil Act

[1] [2] Supreme Court Decision 2013Da33577 Decided November 14, 2013 (Gong2013Ha, 2210) / [1] Supreme Court Decision 93Da6014 Decided March 14, 1995 (Gong195Sang, 1598), Supreme Court Decision 2002Da16965 Decided December 27, 2002 / [2] Supreme Court en banc Decision 98Da45652, 4569 Decided November 16, 200 (Gong201Sang, 39) Supreme Court Decision 2006Da84171 decided May 27, 2010 (Gong2010Ha, 1205Ha, 1205Da31295 decided December 12, 2012)

Plaintiff

The defendant who participated in the takeover of the non-party 1 (Withdrawal)

Seoul High Court Decision 2011Na31791 decided October 13, 2011

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Each sectional owner has legitimate authority to use all the site of the building for the purpose of use, irrespective of the share of co-ownership in the site, barring special circumstances such as where separate regulations exist (see Supreme Court Decision 93Da60144, Mar. 14, 1995). “Site of a building” includes all the land on which an aggregate building is located, barring any special circumstances (see Supreme Court Decision 2002Da16965, Dec. 27, 2002). After a sectional owner’s right to use the site for the whole site of an aggregate building has been established, the right to use the site can not be disposed of separately from the section of exclusive ownership unless otherwise stipulated by regulations (see Article 20 of the Aggregate Buildings Act); there is no act of disposal contrary to the unity of the section of exclusive ownership and the right to use the site (see Supreme Court en banc Decision 208Da45652, Nov. 16, 200; Supreme Court Decision 200Da56167, Nov. 27, 2007>

2. According to the facts and records admitted by the court below by citing the judgment of the court of first instance, the non-party 2 newly built a multi-household detached house (9 households) on March 19, 196 and entered it in the aggregate building register on February 25, 2002 and completed the registration as an aggregate building on August 2, 2002. The non-party 3 purchased the building of this case and its site after completing the registration as an aggregate building from the non-party 2 to the non-party 5 and completed the registration of ownership transfer on August 5, 2002. The non-party 2 transferred the ownership of the share of this case to the non-party 4 on March 24, 2005, and the non-party 2 acquired the ownership of the land of this case to the non-party 3, which was the non-party 2's exclusive ownership in the site of this case, and the non-party 2 acquired the ownership of the land of this case as an independent ownership in the procedure of seizure.

The fact that Nonparty 3, while selling the above aggregate building in lots, completed the registration of ownership transfer to the buyers only with respect to some of the shares in the site of this case and left the remaining shares in this case cannot be deemed valid as being contrary to Article 20(2) of the Aggregate Buildings Act, unless there are special circumstances such as consistent with the rules by agreement with the sectional owners. Furthermore, it is difficult to find out any special circumstances such as that there is a provision that allows a separate disposition even after examining the record.

Therefore, the attachment of Seodaemun-gu Seoul Metropolitan Government on the instant share results in the separation of the section for exclusive use and its site. It is not effective in the attachment, and the attachment constitutes a disposition prohibited as a transaction conducted by the tax office, etc. on behalf of the right holder, not a direct disposition by the right holder, but as it constitutes a disposition prohibited by the tax office, etc. on behalf of the right holder. Ultimately, since the Plaintiff’s transfer of ownership on the instant share due to the said public sale is null and void, the Plaintiff’s claim for return of unjust enrichment against the Defendant cannot be made on the basis of the instant share

The court below held that even if a person, other than a sectional owner of a building, acquires only the co-ownership share of the site in the auction procedure, and fails to use and make profits from the site at all, it cannot claim a return of unjust enrichment based on the co-ownership right of the site, or held that the sectional owner, who is a co-owner of the site, can exercise the right of free use regardless of his intention of succession against the person who succeeded to and acquired the share of the site without a section of exclusive ownership, but the court below'

3. 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 on the bench.

[Attachment 1] List of Appointeds (Plaintiffs): Omitted

[Attachment 2] List of Appointeds (Defendants): omitted

Justices Lee Sang-hoon (Presiding Justice)