Whether there is a benefit to seek the acceptance of the division of the jointly owned property by a lawsuit against the person holding the provisional attachment or provisional disposition for a part of the land before the partition (negative)

The division of co-owned property is conducted through consultation or judicial request between co-owners, and if a person holding a provisional attachment or provisional attachment, etc. who has completed the registration of provisional attachment or provisional attachment with respect to shares owned by one of the co-owners, even if the person holding a provisional attachment, etc. expresses his/her intention to consent to the division of the co-owned property or to oppose the division of the co-owned property, the declaration of such intention does not affect the establishment of the division of the co-owned property. However, since the registration of provisional attachment or provisional injunction is transferred to the whole co-owned property, even after the share of the co-owned property becomes divided, there is no benefit to seek the approval of the division against the person holding a provisional attachment

Article 268 of the Civil Act, Article 94 of the Registration of Real Estate Act, Article 226 of the Civil Procedure Act / [Institution of Lawsuit]

[Defendant-Appellee] The Head of Si/Gun/Gu (Attorney Cho Jong-hee, Counsel for defendant-appellee)

[Defendant-Appellee] Defendant 1 and two others (Attorney Ha Chang-won, Counsel for defendant-appellee)

Jeju District Court Decision 96Da10729 delivered on February 17, 1998

1. Of the judgment of the court below, the part against the plaintiffs against the defendant Cho Jong-hee and defendant Sung Jin-Jin Co., Ltd. regarding the claim for land division approval shall be revoked and the plaintiffs' lawsuit corresponding to that part shall

2. The plaintiffs' remaining appeals against the defendant Cho Jong-hee and the appeal against the defendant Lee Jong-hee are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the plaintiffs and the defendant Jinsa and defendant Jinsa Co., Ltd. among the costs of lawsuit is assessed against the plaintiffs, and the costs of appeal against the plaintiffs' completion paths are assessed against each of the plaintiffs.

The part of the judgment of the court below against the plaintiffs is revoked, and the defendant Gojin-si Co., Ltd. (hereinafter referred to as the "Defendant Sungjin-si Co., Ltd.") is the provisional attachment owner, and the land listed in the annexed land list No. 1 (hereinafter referred to as the "No. 1") is the land of the plaintiff Jong-chul, the land listed in the annexed land list No. 2 (hereinafter referred to as "No. 2") as shown in the annexed land list No. 2 (hereinafter referred to as "No. 3") shall be divided into the land of the plaintiff Jong-si, and the land listed in the annexed land list No. 3 (hereinafter referred to as "No. 3"), and the land No. 1 and No. 3 shall be divided into the land and the land of the others, and the registration No. 3120, May 3, 1995; the registration of the establishment of the establishment of the neighboring land completed on April 14, 1995; and the registration of the establishment of the establishment of the superficies is revoked.

1. Basic facts

The following facts are not disputed between the parties, or there is no counter-proof as to Gap evidence 1, Gap evidence 2-1 through 3, Gap evidence 3, Gap evidence 4-1, 2, Gap evidence 5-1, Gap evidence 8-1, and the testimony of Kim Tae-ho of the original judgment, and there is no counter-proof.

A. On November 9, 1993, the Jeju District Court received the Jeju District Court’s receipt of No. 5198 on November 9, 1993, with respect to the land of 1,015 square meters (hereinafter referred to as “land prior to subdivision”) in the Jeju Northern-gun, Jeju-gun, the registration of ownership transfer was completed. However, the registration of ownership transfer was completed in the name of the Plaintiff-U.S. on September 16, 1994 on the land prior to subdivision by specifying the land No. 2 and 698 square meters in the land prior to subdivision, but the registration of subdivision was not completed, since the Plaintiff-U.S. purchased the land of 2 and 3 parts in the land prior to subdivision, but the subdivision was not registered on September 16, 1994.

B. After that, on the land before subdivision on September 26, 1994, the Plaintiff Jong-si was constructed by obtaining a construction permit of the first underground floor, the fourth floor, the fourth floor, the multi-household of eight households in total, and the Na Dong (Bdong) under each of the Plaintiffs’ respective names on the land on which the land before subdivision was made and the land on which the 102, 202, 302, 402, 402, 402, 402, and 116 square meters was located adjacent to the Plaintiff Jong-si, Jeju Special Metropolitan City. The Plaintiffs agreed to transfer the construction permit of the above Ha Young-dong, which was part of the contract price, to the Ha Young-dong and the 396 square meters of the land before subdivision, which was part of the contract price, to the 8 households in operation (Adong), and to the 101, 201, 201, 201, 201, 201.

C. However, as at the time of the above agreement between the plaintiffs and the salary Decree, the land prior to the division was divided into the land No. 1 or 3 or the subsequent subdivision registration was not completed, the registration of ownership transfer was completed in the name of the salary Decree with respect to the share of 396/1,015 of the land prior to the division as at April 14, 1995 pursuant to the Jeju District Court’s receipt of No. 26293 on April 14, 1995.

D. The land before subdivision was divided into the land on February 1, 1996 and the land before subdivision was divided into the land on February 7, 1996, but the subdivision registration by the division of land is not yet made. The land of the first through third is only registered as the land to be jointly owned according to the respective shares of the Plaintiff’s Hun-Ga, the Plaintiff’s 317/1,015, the Plaintiff’s Hun-Ga, the Kim U.S. 302/1,015, and 396/1,015.

E. In order to exercise the right to the salary class against the Defendant Cho Gyeong-hee, Defendant Sung Jin-Sacon, and Defendant’s completion length, provisional attachment registration, provisional injunction registration, and collateral security and superficies creation registration, such as the registration in the separate sheet, as stated in the separate sheet, did not register the land before division, and registered as joint ownership of the Plaintiffs and salary Decree. Therefore, each of the above registrations shall be completed as to the ownership share of salary class out of the land before division, as shown in the separate sheet.

F. The Plaintiffs terminated each of the above title trust with respect to the land No. 1 and the land No. 3 by serving a duplicate of the amendment of the purport of the claim on December 22, 1997 with respect to the salary Decree.

2. The plaintiffs' assertion and judgment thereon

The plaintiffs asserted that, inasmuch as the part concerning the land No. 1 and the land No. 3 among the ownership transfer registration under the name of salary class prior to the division is based on a mutual title trust, since the title trust is terminated with respect to the land before the division and the part concerning the land No. 1 and the land No. 3, which are owned by the plaintiffs, are completed in the separate name of the plaintiffs after seeking the termination of the title trust and the implementation of the procedure for the ownership transfer registration, the registration of ownership transfer is completed in the separate name of the plaintiffs after completing the divided ownership transfer registration with respect to the land No. 1 and the land No. 3, which are owned by the plaintiffs under the name of the defendants as shown in the registration of real estate Act, if each of the above registrations, which are recorded in the name of the defendants, are transferred to the land No. 1 and No. 3, which are owned by the plaintiffs as the sole owners of the land before the division, the plaintiffs' exercise of rights as the owners of the land No. 1 and No. 3, which are prevented.

A. Whether a lawsuit seeking consent to the division of land against the defendant Dok-hee and the defendant Magjin-mixed is legitimate or not

The plaintiffs claimed that the land No. 1 from the land before the division against Yyoung in the court below was divided into the land before the division, the land No. 2, the land No. 3, and the land No. 3 as owned by the plaintiff Kim Young-min at the 17th day of pleading in the court below, and sought implementation of the procedure for the registration of ownership transfer due to the cancellation of mutual title trust as seen in the above by stating the purport of the claim and the reason for the change of the claim on Dec. 22, 1997 at the 17th day of pleading in the court below, and sought approval for the division of land before the division.

On the other hand, the division of the co-owned property is conducted through a consultation or a judicial request between co-owners. If there is a person holding the provisional attachment or a provisional attachment registration with respect to shares owned by one of the co-owners, even if the person holding the provisional attachment, etc. expresses his/her consent or opposition to the division of the co-owned property, the provisional attachment registration does not affect the establishment of the division of the co-owned property. However, even after the division of the co-owned property, the registration of the provisional attachment or provisional injunction remains after the division of the co-owned property is completed, the whole co-owned property divided according to the previous shares. However, as long as the purport of the plaintiffs seeking consent to the provisional attachment or provisional injunction against the defendant Go Gyeong-hee and the defendant Sung Jjin-jin was not to seek cancellation of the registration of the provisional attachment or provisional injunction under the above Defendants' names, it is sufficient for the plaintiffs to obtain a favorable judgment against the defendant, who was merely the person holding the provisional attachment or provisional disposition with respect to shares owned in the land before the division, there is no benefit to seek the division against the above Defendants.

Therefore, among the lawsuits in this case, the part of the plaintiffs' claim for the consent to the division of the jointly owned property against the defendant Dok-hee and the defendant corporation shall not be exempted from dismissal on the ground that it is unlawful.

B. Whether it is possible to seek cancellation of the registration of the establishment of a neighboring mortgage against the defendant Go-Seung and the defendant's completed paths

The land of the first or third land is divided into the land cadastre, and the land before the division is still registered in the register as co-ownership with the plaintiffs. The registration of the establishment of a neighboring land under the above defendants' names is completed only with respect to the shares in the salary management out of the land before the division. As seen above, since the registration of the establishment of a neighboring land of the first or third land subject to the plaintiffs' cancellation is not yet completed and the registration of the establishment of a superficies has not yet been completed, it is currently nonexistent. However, if the land before the division is divided into the first or third land and becomes a sole ownership, it is merely a registration to be registered as the land of the first or third land to be acquired by the plaintiffs, and there is no need to file a request for cancellation. Accordingly, the plaintiffs' registration of the establishment of a neighboring land under the above defendants' names cannot be cancelled in advance on the premise that the registration of the establishment of a neighboring land of the plaintiffs and third parties, which will be owned by the plaintiffs, and it is not subject to any infringement of the ownership of the above land.

In addition, even if the plaintiffs can file a prior claim against the above defendants for the cancellation of the registration of the establishment of the above mortgage, as in this case, if the registration of the partition of co-owned land, which is owned by the plaintiffs and the salary Decree, is completed after the registration of the establishment of the establishment was completed with respect to only the shares owned by the salary Decree among the lands registered as co-ownership of the plaintiffs and the salary Decree, as in this case, the registration of the partition of co-owned land shall be completed, except for the case where the registration of the right other than the ownership is accompanied by the document proving that the registered titleholder of the right other than the ownership consents to the extinguishment of the right (Article 94(3) of the Registration of Real Estate Act) or a certified copy of the judgment against the registered titleholder of the right other than the ownership, the registration form of the land to be owned exclusively by the plaintiffs remains or is recognized as effective (refer to Article 94(3) of the Registration of Real Estate Act) and it is not transferred more or more (refer to Article 2.144).

Therefore, unless there are special circumstances such as the agreement between the plaintiffs and the above defendants that the registration of establishment of the above establishment would be solely owned by the defendant, the plaintiffs cannot seek cancellation of the registration of establishment of the above neighboring establishment against the above defendants. Otherwise, there is no ground or evidence to deem that the above defendants are liable to cancel the registration of establishment of the above neighboring establishment in the above defendants' names as to the first and third land owned by the above defendants. Thus, the above part of the plaintiffs' claim against the above defendants is nothing more than one mother but without merit.

3. Conclusion

Therefore, among the lawsuits in this case, the part of the plaintiffs' claim for the consent to the division of land against the defendant Cho Gyeong-hee and the defendant Sung Jin-gun corporation shall be dismissed, and the part of the plaintiffs' claim for the cancellation of the registration of the establishment of the neighboring mortgage against the defendant Cho Jong-hee and the defendant Lee Jin-jin corporation shall be dismissed as it is without merit. Among the part of the judgment of the court below which different conclusions, the part of the plaintiffs' claim for the approval of the division among the part against the defendant Cho Jong-hee and the defendant Sung-jin corporation against the defendant Cho Jin-jin corporation shall be revoked, and the plaintiffs' lawsuit corresponding to that part shall be dismissed, and the remaining appeal against the defendant

Judges Kim Jong-sung (Presiding Judge)