Where one co-owner (private person) uses and benefits from the land owned by the State and a private person in excess of his/her share ratio without consultation with the State, whether the State and the private person can impose indemnity for the portion corresponding to the share of the State (negative)

According to the provisions of the latter part of Article 263 of the Civil Act, co-owners may use and benefit from all co-owned property at the ratio of shares. Therefore, it is reasonable to deem that a private person who is a co-owner uses and benefit from part of co-owned land exceeding his/her share ratio without consultation with other co-owners as to the method of using and benefit from co-owned land. Thus, it is reasonable to deem that a private person who is a co-owner uses and benefit from the part of the co-owned land exceeding his/her share ratio. Thus, it shall not be deemed that it is an unauthorized use or benefit from the part equivalent to the share of the State in the area he/she uses and benefits from the co-owned land to another co-owner who is the other co-owner without using and benefit from the co-owned land, apart from returning unjust enrichment under the Civil Act as to the part equivalent to the share of the State in the area he/she uses and benefits from the co-owned land.

Article 51(1) of the State Property Act, Article 263 of the Civil Act

Plaintiff (Attorney Lee Im-soo, Counsel for plaintiff-appellant)

The head of Songpa-gu Seoul Metropolitan Government

Seoul High Court Decision 97Gu28980 delivered on March 19, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to the assertion of the prescription period for possession

Examining the reasoning of the judgment below in light of the records, the court below is just in rejecting the Plaintiff’s assertion that the Plaintiff’s possession of the Plaintiff’s land totaled of 369.4 square meters among the instant land owned by the Plaintiff, the State, and the Nonparty 3, was an owner of a building on the ground of its reasoning, and thus, the claim for transfer registration based on the completion of prescription for acquisition of ownership was made against the Plaintiff. In so doing, the court below did not err by misapprehending the legal principles as to

2. As to the assertion that he/she occupies shares as co-owner

According to the provisions of the latter part of Article 263 of the Civil Act, co-owners may use and benefit from all co-owned property at the ratio of shares. Therefore, it is reasonable to deem that a private person who is a co-owner uses and benefit from part of co-owned land exceeding his/her share ratio without consultation with other co-owners as to the method of using and benefit from co-owned land. Thus, it is reasonable to deem that a private person who is a co-owner uses and benefit from the part of the co-owned land exceeding his/her share ratio. Thus, the portion of the area he/she uses and benefits from is equivalent to the share of the State in the area he/she uses and benefits from the co-owned land to another co-owner who is the other co-owner without using and benefit from the co-owned land, separate from returning unjust enrichment under the Civil Act as to the portion equivalent to the share of the State in the area he/she uses and benefits from the co-owned land. Therefore, the State cannot impose compensation pursuant to Article 51(1) of the State Property Act.

Nevertheless, the court below dismissed the plaintiff's claim seeking the revocation of the disposition imposing indemnity of this case, on the ground that the plaintiff's possession of the part corresponding to the ratio of shares of the state among the land owned by the plaintiff's building constitutes unauthorized occupation, use, and profit-making of state property under Article 51 (1) of the State Property Act. The court below erred in the misapprehension of legal principles as to the latter part of Article 263 of the Civil Act and Article 51 (1) of the State Property Act, which affected the conclusion

3. Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent

Justices Yoon Jae-sik (Presiding Justice)