[1] The purport of Article 20 of the Act on the Ownership and Management of Aggregate Buildings, which is a provision on the unity of a section for exclusive use and a right to use a site

[2] In a case where the question is whether a purchaser who purchased land and constructed an aggregate building on that ground acquires the right to use the site corresponding to the section for exclusive use after purchasing the section for exclusive use and completing the registration of ownership transfer, and again purchased that section for exclusive use and completed the registration of ownership transfer, the case holding that the court below erred in the misapprehension of legal principles as to Article 20 of the Act on the Ownership and Management of Aggregate Buildings, on the ground that the purchaser had not acquired the right to use the site on the ground that each time of registration of ownership transfer had already acquired the right to use the site corresponding to the above section for exclusive use, and barring special circumstances, the disposition of the above section for exclusive use can be seen as being accompanied with the corresponding right to use the site and transferred together with the right to use the site; however, there is no evidence that the purchaser

[1] Article 2 subparagraphs 3 and 6, and Article 20 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 2 subparagraphs 3 and 6, and Article 20 of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Decision 2004Da742 decided Mar. 10, 2006 (Gong2006Sang, 600)

Plaintiff (Attorney Lee Jae-hoon, Counsel for the plaintiff-appellant)

Comprehensive Construction of Limited Partnership Corporation

Changwon District Court Decision 2009Na307 decided January 7, 2010

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

Article 20 of the Act on the Ownership and Management of Aggregate Buildings provides that a sectional owner's right to use a site shall follow the disposition of his section of exclusive ownership (Paragraph 1), and that a sectional owner shall not dispose of his right to use a site separately from his section of exclusive ownership unless otherwise provided by the regulations or notarial deeds (Paragraph 2 and 4), and that the prohibition of separate disposal shall not be asserted against a third party who has acquired a real right in good faith without registering the purport thereof (Paragraph 3). The purport of the above provision is to prevent the separation of a section of exclusive ownership into a condominium and a right to use a site from the occurrence of a sectional ownership without a right to use a site by preventing the occurrence of a sectional ownership without a right to use a site from occurring (see, e.g., Supreme Court Decision 2004Da742, Mar. 10, 206).

According to the reasoning of the judgment below, in order to acquire the share of this case, which is the share of a site falling under Article 1402 of the building of this case, the court below rejected the plaintiff's claim for the use of the land of this case on the ground that the non-party, the buyer of this case, should have acquired the right to use the land of this case from the defendant, the building owner of this case, by purchasing the share of this case in the form of sale and paying the purchase price in full. The non-party did not have any evidence to deem that the non-party purchased the right to use the land of this case from the defendant in addition to the section of exclusive ownership. Even though it is presumed that the non-party purchased the share of this case from the defendant in accordance with the presumption of registration by transfer registration by transfer of ownership in the future of the non-party, even if it is presumed that the non-party purchased the share of this case, the share of the land of this case falling under subparagraph 1402 of the building of this case, the non-party acquired the right to use the land of this case.

However, according to the facts acknowledged by the court below, the defendant purchased the land of this case and completed the registration of ownership transfer under the name of October 8, 1993, and newly constructed and sold the building of this case which is an aggregate building on that ground. After that, with respect to subparagraph 1402 of the building of this case, the registration of ownership transfer based on the sale on October 1, 1995 under the name of the non-party on October 4, 1995 and the registration of ownership transfer based on the sale on February 9, 207 under the name of the plaintiff on February 12, 2007 is completed. Thus, in light of the above legal principles, it is only recognized that the defendant had already acquired the right to use the land of this case from the non-party and the plaintiff on the above section of exclusive use from the non-party and the non-party on the part of this case at the time of each transfer of ownership transfer from the non-party and the plaintiff on that ground, barring any special circumstance.

Nevertheless, the court below rejected the plaintiff's assertion on the grounds as stated in its holding on the premise that the non-party who purchased the shares in this case, which are the exclusive ownership of the building from the defendant as the building owner, in the form of sale, and the purchase price is paid in full, under the premise that the above shares shall be entitled to use the site. The court below erred by misapprehending the legal principles as to Article 20 of the Act on the Ownership and Management of Aggregate Buildings, which affected the conclusion of the judgment. The ground of appeal

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)