[1] Requirements for establishing a right to use site of an aggregate building and the time when a sectional owner who has no right to use site acquires a right to use site ex post facto

[2] The validity in a case where a right to use a site is disposed of separately from a section for exclusive use in violation of the main sentence of Article 20(2) of the Act on Ownership and Management of Condominium Buildings

[1] Article 2 subparagraph 6 and Article 20 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 2 subparagraph 6 and Article 20 of the Act on the Ownership and Management of Aggregate Buildings

[1] [2] Supreme Court Decision 2009Da26145 decided Jun. 23, 2009 (Gong2009Ha, 1187)

Plaintiff (Law Firm Aba, Attorneys Yoon- Promotion et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney misunderstanding-ho, Counsel for the defendant-appellant)

Seoul Northern District Court Decision 2011Na2218 decided July 1, 2011

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the first ground for appeal

The right to use the site of an aggregate building is a right that a sectional owner has on the site of a building in order to own a section for exclusive use, and to establish it, the right to use the site is not required to require any special requirements other than the existence of an aggregate building and the right that a sectional owner is entitled to use the site for the ownership of a section for exclusive use (see Supreme Court Decision 2009Da26145, Jun. 23, 2009, etc.). If a sectional owner who has no right to use the site acquires the right after

According to the reasoning of the lower judgment and the first instance judgment partially accepted by the lower court, the lower court determined that the right to use the site for the purpose of subparagraph 101 above 3 Dong 101 was established by acquiring the ownership of the portion of 61.375/2,565 out of the instant land, which is the site of the instant apartment house, after being awarded a successful bid at the auction procedure of the instant apartment house 3 101,

In light of the above legal principles and records, the judgment of the court below is justified.

The court below did not err in the misapprehension of legal principles as to land which is the object of site ownership as otherwise alleged in the ground of appeal.

2. On the second ground for appeal

Article 20 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act") provides that a sectional owner's right to use a site shall follow the disposition of his section for exclusive use (Paragraph 1), and that a sectional owner shall not dispose of his right to use a site separately from his section for exclusive use unless otherwise provided by the regulations or notarial deeds (Paragraph 2 and 4). The purport of the provision is to prevent the separation of a section for exclusive use of an aggregate building and a right to use a site from the section for exclusive use of an aggregate building to the maximum extent possible, thereby preventing the occurrence of sectional ownership without a right to use a site from occurring.

In full view of the contents and legislative intent of the provisions of the Aggregate Buildings Act, the right to use site cannot be disposed of separately from the section for exclusive use, unless there are special circumstances that the same is stipulated differently by the regulations or notarial deeds, and the disposition violating the right to use site is null and void (see, e.g., Supreme Court Decision 2009Da26145, Jun. 23, 2009).

According to the reasoning of the lower judgment and the first instance judgment partially admitted by the lower court, the lower court determined that Defendant 1’s disposal of the shares of 61.375/2,565 of the instant site, which is the subject of the right to use site for the said 3 Dong 101, was null and void, separately from the above 3 Dong 101.

In light of the above legal principles and records, the judgment of the court below is justified.

The court below did not err in the misapprehension of legal principles as to the interpretation of Article 20 (2) of the Aggregate Buildings Act as otherwise alleged in the ground of appeal.

3. On the third ground for appeal

This part of the grounds of appeal is not legitimate grounds of appeal, as it is alleged that the grounds for appeal not asserted until the closing of argument in the court below were raised only in the court of final appeal (as of June 27, 201, Defendant 2 was a bona fide third party, although Defendant 2 asserted in the counterclaim as of June 27, 201, the above counter-appellant

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)