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1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The first instance court.
Reasons
1. The Plaintiff’s assertion that H land in Dongjak-gu Seoul Metropolitan Government was replaced by I, J, and C land, and K received a specific share of 147.8 square meters among them. However, the ownership transfer registration was completed as a co-owned share based on the area of land before replotting.
Then, D’s succession to the specific portion of the land in Dongjak-gu Seoul Metropolitan Government through K, L, and M in succession to 44 square meters (the land became the land of this case after the successive division), and there was sectionally owned co-ownership relation with the above specific portion between the Defendant, E, F, and the Republic of Korea as other co-owners on the registry. However, G acquired the total share of some co-owners, including D, 209.8/84, including D, and the Plaintiff succeeded to the sectionally owned co-ownership relation with the land of this case by wholly transferring it to the Plaintiff. Accordingly, the Plaintiff is in a mutually nominal trust relation with the Defendant’s share
Furthermore, since the Plaintiff terminated the above mutual title trust with the service of the duplicate of the complaint in this case against the Defendant, the Defendant is obligated to implement the registration procedure for transfer of ownership on the ground of termination of title trust with respect to the portion of 4,200/8,400 in the name of the Defendant among the land in this case.
2. The judgment-based co-ownership relationship is legally established only when there is an agreement between many persons to specify the location and area of a parcel of land and to divide the co-owners into sectional ownership. Even if co-owners agreed to divide the jointly-owned property and have occupied and used each part by specifying the sectional ownership from that time, the sectional co-ownership relationship may be established. However, if co-owners did not reach an agreement to exclusively vest a specific portion among themselves, there is no room to establish such relationship.
Supreme Court Decision 2004Da71409 Decided April 29, 2005 and Supreme Court Decision 2008Da44313 Decided March 26, 2009