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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff’s assertion and the Defendants shared real estate listed in the separate sheet 1 in proportion to co-ownership shares listed in the separate sheet 2. The Plaintiff and the Defendants seek co-ownership of co-owned property in proportion to co-ownership shares in the separate sheet 2, by dividing the amount calculated by deducting auction costs from the proceeds of sale when a third party is awarded a successful bid.
2. Determination as to Defendant B and D’s main defense
A. The instant lawsuit is unlawful as there is no benefit in litigation, since Defendant F filed a lawsuit for partition of co-owned property in the instant case with the same subject matter and the same party’s lawsuit for partition of co-owned property in accordance with the Busan District Court’s 2018Kadan11055 as to real estate listed in the separate sheet 1.
B. According to the purport of each of the statements and arguments in the evidence Nos. 1 through 7 and all of the arguments in this case, in the case of unjust enrichment, etc. filed by Defendant F, G against the Plaintiff and the remaining Defendants, the Busan District Court rendered a ruling ordering the auction division of the real estate stated in the separate sheet No. 2018Gadan11055 against the Plaintiff and the remaining Defendants, which became final and conclusive on July 4, 2019.
In addition, the decision ordering the sale of the article jointly owned by the auction and the distribution of the proceeds of sale is a special formation decision subject to auction, which aims to resolve the joint ownership relationship uniformly for all the co-owners. Therefore, the parties to the decision have the right to apply for an auction of the article jointly owned by the court without distinction between the plaintiff and the defendant.
(see Supreme Court Order 79Ma5, Mar. 8, 1979). Therefore, the instant lawsuit is unlawful as there is no benefit in protecting rights.
3. It is so decided as per Disposition by the assent of all participating Justices, since the lawsuit of this case is unlawful.