Where the co-ownership relationship is terminated, the legal relationship between each co-owner.

In a case where the co-ownership relationship is terminated, the obligation to register the ownership between co-owner's co-ownership is in relation to the performance thereof. In addition, each co-owner is obligated to register the ownership in full, unless there are any special circumstances, to register the ownership in full. Thus, in a case where the registration of the establishment, seizure, or provisional seizure is completed on the co-ownership share indicating the co-ownership relationship, the co-owner's co-ownership should cancel each of such registrations. Therefore, in a case where the co-ownership relationship is terminated, the obligation to register the ownership in full and to cancel such establishment of a mortgage is also a simultaneous performance relationship. In addition, in a case where one party raises the defense that the other party should simultaneously implement the registration procedure for the transfer of ownership in a co-ownership with respect to his/her claim for the cancellation of the title trust and the registration of the transfer of ownership in a co-ownership relationship, the defense of the simultaneous performance should be deemed to include an expression of intent to cancel the title trust, barring special

Article 536 of the Civil Act

[Plaintiff-Appellant] Plaintiff 2004Da24557 delivered on June 9, 2006 (Gong2006Ha, 1253)

Plaintiff 1 et al., the taking over of the lawsuit of the deceased

Defendant (Attorney Cho Young-young, Counsel for defendant-appellant)

Chuncheon District Court Decision 2003Na2052 delivered on June 8, 2004

The judgment of the court below is reversed, and the case is remanded to the Gangnam Branch Branch Court Panel Division.

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

1. Regarding ground of appeal No. 1

The court below acknowledged the facts of the judgment after comprehensively taking account of the employment evidence, and judged that the land No. 1 is owned by the defendant, No. 2, and No. 3, and each share registration of the plaintiff and the defendant with respect to each of the above lands is a co-ownership relationship under the mutual title trust registered from the land (number omitted) before the partition. In light of the records, the above recognition and decision of the court below is just, and there is no violation of the rules of evidence or misunderstanding of legal principles as to the sectionally owned co-ownership relationship, as alleged in the grounds of appeal

2. As to the third ground for appeal

Unless there are special circumstances, the Plaintiff’s act of setting up a right to collateral security against the Plaintiff’s share in the land No. 1 shall be deemed as the act of disposal of co-ownership on the land No. 2 and 3, and it cannot be deemed as the act of disposal of co-ownership as a mere co-owner’s co-owner’s co-ownership, and thus, it cannot be deemed as the act of disposal of co-ownership on the land No. 2 and 3, and on different premise, the Plaintiff’s act of establishing a right to collateral

3. Regarding ground of appeal No. 2

The court below rejected the defendant's defense of simultaneous performance that the defendant cannot respond to the plaintiff's claim of this case until the plaintiff's transfer of shares in the land No. 1 has been made, and there is no evidence to prove that the defendant terminated the title trust with respect to the land No. 1.

However, the above judgment of the court below is hard to accept in the following respects.

The right to defense of simultaneous performance is a system in which each party's obligations are related to each other's obligations on the basis of the concept of fairness and the principle of good faith so that each party can refuse performance if the other party claims performance of one party's obligations without performing his obligations or offering performance. In light of the purport of the system, even though each obligation to be borne by the party is not in a bilateral contract, in accordance with the terms and conditions of the agreement on the obligation borne by each party in a specific contractual relationship, the right to defense of simultaneous performance can be acknowledged in cases where there are circumstances where the relationship of performance should be recognized as having a quid pro quo. (See Supreme Court Decision 2004Da24557, Jun. 9, 2006). However, in cases where a sectional co-ownership relationship is resolved, all the obligation to transfer shares to each party in the sectional co-ownership relationship arose from the sectional co-ownership relationship, and each co-ownership share in the sectional co-ownership relationship serves as a security and the obligation to transfer shares mutually in accordance with the principle of good faith.

On the other hand, in the event that the sectional co-ownership relationship is terminated, each co-owner is liable to register full shares without any limit or burden, so if the registration of establishment, seizure or provisional seizure has been completed on the co-owned share indicating the co-ownership relationship, it is reasonable to view that the co-owner as a co-owner has the duty of registration of ownership transfer of both parties when the sectional co-ownership relationship is terminated, as well as the duty of cancellation of the registration of ownership transfer of both parties when the sectional co-ownership relationship is terminated.

In addition, in the case where either party in the sectionally owned co-ownership raises a defense that the other party should simultaneously implement the procedure for the registration of ownership transfer to himself/herself when cancelling the title trust and claiming the registration of ownership transfer, such simultaneous performance defense shall be deemed to include the declaration of intention to terminate the title trust, unless there are special circumstances.

Examining the record in light of these legal principles, it can be found that the establishment registration, seizure, provisional seizure registration, etc. of the establishment of a title trust over the portion of the Plaintiff’s portion in the land owned by the Defendant has been completed, and the Defendant raised a defense of simultaneous performance to the effect that the share of the Plaintiff in the status of cancellation of each of the above registrations should be transferred to the Defendant. As such, the Defendant’s defense of simultaneous performance includes an expression of intent to terminate the title trust on the portion of the Plaintiff’s share in the land owned by the Defendant, the lower court accepted the defense

Nevertheless, the court below rejected the defendant's defense of simultaneous performance on the grounds as stated in its holding. The court below erred by misapprehending the legal principles as to the termination method of title trust or its simultaneous performance relationship in the sectionally owned co-ownership relationship, which affected the conclusion of the judgment. The ground of appeal assigning this error has merit

4. 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.

Justices Lee Hong-hoon (Presiding Justice)