Whether the lawsuit for removal of jointly owned property is a requisite co-litigants, and whether the obligation to remove is an indivisible obligation due to its nature.

A. A lawsuit seeking removal for an article jointly owned is not a requisite co-litigation to be confirmed jointly against all co-owners in its nature;

B. Since the co-inheritors’ obligation to remove the buildings is an indivisible obligation in its nature, each co-inheritors shall be deemed to bear the obligation to remove the entire dispute. Accordingly, the landowner may seek the performance of his obligation to each co-inheritors in sequence, or at the same time seek the performance of his obligation to all the co-inheritors.

Article 63 of the Civil Procedure Act, Articles 263 and 411 of the Civil Act

Supreme Court Decision 80Da756 delivered on June 24, 1980 74Da537 delivered on August 30, 1974 (Dakhd 10791; Supreme Court Decision 22Du261 delivered on August 261; Civil Code No. 262(13) Decided November 25, 1969 65Da1352 delivered on November 25, 196 (Dakhh847; Supreme Court Decision 17No36 delivered on June 24, 197; Decision 63(2)803 of the Civil Procedure Act

Plaintiff

Defendant 1 and three others

Gwangju District Court (78Gahap615)

The defendants' appeal is dismissed.

The costs of appeal shall be borne by the defendants.

(2) The defendant 2,00 won per month from the day following the delivery of this case to the removal of the building, and the defendant 2 paid 50,000 won per month from the day of the delivery of this case to the day of the removal of the building. (The defendant 1) The defendant removed 1,00,000 local wood and 15 square meters wide, 155 square meters wide, local wood and 12 square meters wide, 155 square meters wide, 155 square meters wide, 155 square meters wide.

Litigation costs shall be borne by the defendants.

The judgment of the court of first instance is revoked. The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

The defendant 2 has revoked the part against the defendant among the judgment of the first instance, and the plaintiff's claim against the revocation is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

As to the facts that were subject to the registration procedure of ownership transfer in the Plaintiff’s name with respect to the Gyeyang-gu, Dong-gu, Gwangju Metropolitan City (number omitted), approximately 155 square meters (hereinafter in this case’s site), there is no dispute between the parties as to the facts that were presumed to be owned by the Plaintiff, and thus, it is presumed to be owned by the Plaintiff, and as to the whole purport of the pleading, Nonparty 1 owned 1 and 1 and 1 and 1 and 12 others (hereinafter in this case’s building) on the site in this case’s case’s case’s case’s case’s case’s title Nos. 2 (Gain Tax Ledger), 3 (No. 6), and 6 (No. 1).

Therefore, the defendants and the non-party 2 are obligated to remove the building of this case unless they prove that they have the title to own the building above the site of this case, which is owned by the plaintiff. The defendants' attorney is jointly owned by the defendants and the non-party 2, so the removal lawsuit against the building of this case is an essential co-litigation. Therefore, the lawsuit of this case brought by the plaintiff except the above non-party is unlawful, and the lawsuit seeking removal against the jointly owned property cannot be deemed to be a requisite co-litigation to be finalized against all the co-owners (see Supreme Court Decision 69 delivered on July 22, 1969). Thus, the above argument cannot be accepted.

Then, even if the defendants' attorney does not do so, they are obligated to remove the building of this case only within the limit of the share of the co-inheritors' share, but each of the defendants, including the shares of the non-party 2. In this case, the plaintiff of this case filed a lawsuit against the co-inheritors who are the owner of the building on the basis of the ownership of this case, and filed a lawsuit against the co-inheritors who are the owner of the building on the basis of the ownership of this case, and did not have a requisite co-litigation. However, in this case, since the co-inheritors's obligation to remove the building is an indivisible obligation in its nature, each co-inheritors's obligation to remove the whole dispute shall be deemed to be borne by each co-inheritors. Therefore, the land owner may seek to perform his duties in sequence against each co-inheritors or simultaneously file a lawsuit against all co-inheritors, and therefore, the plaintiff of this case also did not accept the plaintiff of this case against the remaining co-inheritors except for the non-party 2 who is one of co-inheritors, and the whole building was removed.

Therefore, the defendants have the duty to remove the building of this case and the defendant 2 has the duty to deliver the building of this case. Next, it is identical to the above recognition that the plaintiff 2 directly occupies the building of this case as the site of the above building, but the defendant 2 did not prove the source of right to possess it. Therefore, the defendant is liable to compensate the plaintiff for the damages of the fee-making party caused to the plaintiff by occupying the building of this case from December 8, 1978 to the time of the above removal of the building, which is obvious from the day after the day when the plaintiff was served the building of this case, to December 8, 1978 to the day after the above removal of the building. In full view of the purport of the argument in the testimony of the non-party 3 of the court of first instance, the rent of the building of this case around 1978 can be recognized as equivalent to 20,000 won monthly, and there is no counter-proof evidence otherwise, the defendant is liable to pay the plaintiff the amount from this case to December 20, 1978.

Therefore, the plaintiff's claim for removal of the building of this case and the claim for the delivery of the site are well-grounded and are only reasonable within the scope of the above recognition, and the judgment of the court of first instance, which is based on the result, is just and without merit, each appeal filed by the defendants against this is dismissed, and the costs of appeal are so decided as per Disposition with the defendants who have lost

Judges Yoon Il-young (Presiding Judge)