Where part of one parcel of land is transferred by specifying it, and a co-ownership registration for the entire part is completed for convenience, and the specific part is transferred by whole and the co-ownership registration is completed accordingly, the content that the person asserting that he/she acquired the specific part of land by asserting the legal relations between the first transferor and the last transferee of the specific part and the sectionally owned co-ownership relation should assert and prove it.

Article 103 of the Civil Act / [title trust] Article 288 of the Civil Procedure Act

Supreme Court Decision 2012Da103813 Decided February 12, 2015

Plaintiff 1 and one other (Attorneys White-sung et al., Counsel for the plaintiff-appellant)

Republic of Korea (Government Law Firm Corporation, Attorneys Cho Jae-ho et al., Counsel for the plaintiff-appellant)

Busan District Court Decision 2017Na41542 Decided July 21, 2017

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

The grounds of appeal are examined.

1. Where part of one parcel of land is assigned in a specific manner and a co-ownership registration has been completed for convenience, the registration of a trustee under mutual title trust shall be valid. If the specific part is transferred entirely and the co-ownership registration has been completed accordingly, the title trust relationship between the first transferor and the last transferee of the specific part is established by succession to the position of mutual title trust. However, such sectionally owned co-ownership relationship can be duly established only when there is an agreement between two or more persons specifying the location and area of real estate and the last transferee. Thus, a person who asserts that he/she acquired a specific part of land by asserting sectionally owned co-ownership relation shall claim and prove not only the location of the relevant land subject to sectionally owned ownership agreement, but also the area of the relevant land (see Supreme Court Decision 2012Da103813, Feb. 12, 2015).

2. 가. 원심은 그 판시와 같은 이유로 부산 사하구 (주소 1 생략) 전 258㎡ 및 (주소 2 생략) 대 1,061㎡(이하 통틀어 ‘이 사건 각 토지’라고 한다) 중 원심 별지 도면 표시 ㉰ 부분 91㎡, ㉳ 부분 317㎡를 원고 1 소유로, 같은 도면 표시 ㉮ 부분 166㎡, ㉲ 부분 119㎡, ㉵ 부분 3㎡를 원고 2 소유로, 같은 도면 표시 ㉯ 부분 1㎡, ㉱ 부분 83㎡, ㉴ 부분 539㎡를 피고 소유로 하는 구분소유적 공유관계가 성립하였다고 판단하였다.

B. However, it is difficult to accept the above determination by the court below for the following reasons.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

가) 원고 1은 위 ㉰ 부분 91㎡, ㉳ 부분 317㎡를 점유하고 있고, 원고 2는 위 ㉮ 부분 166㎡, ㉲ 부분 119㎡, ㉵ 부분 3㎡를 점유하고 있는데, 원고들은 자신들이 점유하고 있는 부분을 특정하여 매수하였다고 주장한다.

B) On the registry, the area corresponding to the Plaintiff 1’s share is 154.54m2 and the area corresponding to the Plaintiff 2’s share is 269.71m2. The area occupied by Plaintiff 1 is 408m2 and the area occupied by Plaintiff 2 is 288m2.

C) The Plaintiffs did not submit objective evidentiary materials, such as a sales contract, to recognize that they have purchased certain parts of their possession.

D) On May 17, 1985, Plaintiff 1 completed the registration of initial ownership as to cement block structure, straw roof structure, 115.25 square meters of a single-story house on the ground ( Address 1 omitted) land of Busan Seo-gu, Busan Seo-gu, 1985. However, Plaintiff 1 acquired shares in each of the instant land on May 31, 1990 where the annual amount of five years thereafter elapsed, and it cannot be readily concluded that Plaintiff 1 purchased the relevant land together with the said housing.

E) Plaintiff 2 owns the 66.93 square meters of a single floor of the 1st floor of the block structure of the 1st floor of the city ( Address 1 omitted) located in Busan District (hereinafter “house 1”) and the 61.6 square meters of a single house of the 61.6 square meters of the 1st unit of the ground (hereinafter “house 61.6 square meters”). However, the share of each of the instant land acquired by Plaintiff 2 was owned by four persons until August 5, 201, and two persons were not owners of the housing located within the scope of Korea, and the share of each of the instant land owned by Plaintiff 2 was not the owner of the housing located within the scope of Korea. It cannot be readily concluded that the share of each of the instant lands owned by Plaintiff 2 expressed the part of the site of the housing within the scope of Korea.

F) From August 2007, the Defendant imposed on Plaintiff 1 with respect to the area exceeding 258 square meters prior to the Busan Seo-gu ( Address 1 omitted) which was possessed by Plaintiff 1. The Plaintiff 1 paid indemnity without raising any particular objection.

2) Examining the above facts in light of the legal principles as seen earlier, it is difficult to view that the co-owners of each of the instant lands have established a sectionally owned relationship among the co-owners of each of the instant lands.

C. Nevertheless, the lower court ordered the Defendant to implement the registration procedure for transfer of ownership based on the termination of mutual title trust with respect to the part possessed by the Plaintiffs, on the premise that the form of sectional ownership sharing between the Plaintiffs and the Defendant established. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of sectional ownership sharing relationship, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)