2016Da207027 Return of the purchase price

1. A;

2. B

3. D;

Thai L&C Co., Ltd.

Seoul High Court Decision 2015Na2013735 Decided January 19, 2016

2, 2017.12

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. In order for a sectional ownership to be established for one building, there exists one building in an objective and physical aspect, a divided building part must have structural independence and independence in use, as well as a physically partitioned building part of one building to be the object of sectional ownership. In this context, independence in use means that the relevant building part, which is the object of sectional ownership, has function and utility as a single building independently from its own. Whether independence in use is recognized should be determined by taking into account the utility value of the relevant part and whether it can directly pass through outside. In particular, if the relevant building part is a "divided store" subject to Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Act on the Ownership and Management of Aggregate Buildings"), the characteristics of such sectioned store should be considered.

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

A. On October 22, 2011, Plaintiff A concluded a sales contract with the Defendant to purchase H-017 (3.585m square meters of the area of exclusive ownership) on the fourth floor of the instant commercial building and registered separately from the Defendant for KRW 82,650,70. On April 2, 2011, Plaintiff B concluded a sales contract with the Defendant to purchase H-010 (3.421m square meters of the area of exclusive ownership) on the fourth floor of the instant commercial building and registered separately from the Defendant for KRW 71,939,00. Plaintiff D concluded a sales contract with the Defendant on February 22, 201, to purchase KRW 71,939,00 (3.4m square meters of the area of exclusive ownership) and to purchase KRW 306 (3.41m21m of stores in total, each of which was already registered separately, and the Plaintiffs completed the registration of ownership transfer from the Defendant for each of the instant sales contract.

B. Each of the instant stores sold by the Plaintiffs is located in the 4th floor of the instant commercial building, and the only corridor that the said stores are located in the 4th floor of the instant commercial building is 90cm wide. Each of the instant stores is the separate stores to which Article 1-2 of the Aggregate Buildings Act applies.

3. Based on the aforementioned factual basis, the lower court determined that each of the instant stores, the size of which the Plaintiffs bought in lots, is merely 3.585 or 3.421 meters, and thus, is very narrow to use as an independent sales facility. Each of the instant stores is located on the fourth floor of the instant commercial building, and the only corridor abutting on each of the instant stores is considerably narrow to the extent of 90cm, and it is difficult to view that each of the instant stores has the function and utility of independent sales facilities.

4. However, it is difficult to accept the above determination by the lower court for the following reasons. As seen earlier, whether the independence in use is recognized should be determined by considering the utility value of the relevant part or whether it can be directly passed to the outside, and the fact that each of the instant stores is a divided store under Article 1-2 of the Aggregate Buildings Act should also be considered.

Although the plaintiffs' stores are located in the Gu stone but are directly connected to the passage, it is possible to pass directly to the outside without going through other sections for exclusive use. In addition, even though the exclusive use area is narrow, it is difficult to conclude that they are divided stores under Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings, considering that they are divided stores under Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings, they have no utility value. There is

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the Plaintiffs were not independent in use in each of the instant stores that the Plaintiffs purchased. In so determining, the lower court erred by misapprehending the legal doctrine on the independence in use in an aggregate building, thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal pointing this out

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Young-young

Justices Kim Jae-tae

Chief Justice Lee Dong-won

Justices Kim Jae-in