It is necessary to acquire the sectional ownership of the section for exclusive use by reporting the occupancy and transfer of the completed building.

Even if a person who has acquired the sectional ownership for each section of exclusive ownership has not completed the registration of shares on the site, he has the right to use the site under Article 2 subparagraph 6 of the Act on Ownership and Management of Condominium Buildings, and the separate disposition is restricted under Article 20 (2) of the same Act.

Article 2 of the Act on the Ownership and Management of Aggregate Buildings, the unity of section for exclusive use and right to use site in Article 20 of the Act on the Ownership and Management of Aggregate Buildings.

2015 Gohap3170 Seizure and cancellation of registration

○ Kim

Republic of Korea 4

May 19, 2016

June 16, 2016

1. The Plaintiff:

A. The defendant Republic of Korea completed the AAAA District Court No. 48 XX with respect to AAA City BCC-dong 13,169.8 square meters on August 2, 1992, the seizure registration completed on August 20, 1992 pursuant to the AAAAA District Court No. 48 XX, the seizure registration completed on October 1992 by the same court, the seizure registration completed on August 34, 1993, the seizure registration completed on August 20, 1993, the same court, the seizure registration completed on May 20, 1997, the same court, and the same court.

The registration of seizure completed under XX 123 XX on March 3, 1998, and the registration of seizure completed under XX 281 XX;

B. Defendant AA Metropolitan City B: (a) the attachment registration completed on April 1, 1993 by AAAA District Court No. 94 XX with respect to 13,169.8 square meters of AAA City BCC Dong 1 XX-13,169.8 square meters; and (b) the attachment registration completed on March 1998 by the same court No. 141 XX; (c) the attachment registration completed on March 1, 1998 pursuant to AAA City BCC Dong 10,13,169 square meters; (d) the attachment registration completed on November 1, 1998 at AA District Court No. 659, with respect to 100 square meters of AAA City BCC Dong 13

D. Defendant AA Metropolitan City E-gu: (a) the attachment registration completed on April 1993 by the AAA District Court No. 94 XX with respect to AA City BCC Dong 1 XX-13,169.8 square meters; (b) the attachment registration completed on December 1999 by the same court under the receipt of the 678 XX;

E. Defendant F City’s seizure registration completed under AAA City BCC 1 XX-X 13,169.8 square meters in relation to AA City BCC 13,000 square meters, as AA District Court on February 2, 2003, receipt No. 106 XX.

Each cancellation registration procedure shall be implemented.

2. The plaintiff's remaining claims against the defendant Republic of Korea are dismissed.

3. Of the costs of lawsuit, 10% of the portion arising between the Plaintiff and the Defendant Republic of Korea shall be borne by the Plaintiff, and the remainder by the Defendant Republic of Korea, and the remainder between the Plaintiff and the remaining Defendants

Order 1 Paragraph 1 and Defendant Republic of Korea implement the procedure for cancellation registration of attachment registration completed under AAA City BCC Dong 1 XX-X large 13,169.8 square meters on May 2, 1989 with respect to the Plaintiff.

1. Facts of recognition;

가. 하GG, HH화학 주식회사(이하 'HH화학'이라고 한다), 주식회사 JJJJJ(변경 전 상호: OO종합가스 주식회사, 이하 'JJJJJ'이라고 한다), KK공업 주식회사(이하 'KK공업'이라고 한다)는 추LL, 도MM과 함께 1987. 10. XX. ◇◇◇◇◇◇◇◇에서 AA시 B구 CC동 1XX-X 대 13,169.8㎡(이하 '이 사건 대지'라고 한다) 중 하GG와 추LL은 각 131,698분의 16,923 지분, HH화학은 131,698분의 16,924 지분, JJJJJ은 131,698분의 26,445 지분, KK공업은 131,698분의 32,801 지분, 도MM은 131,698분의 21,682 지분을 각 매수한 후 1989. 1. XX. 각 지분에 관하여 소유권이전등기를 마쳤고, 정NN은 1988. 7. XX. 도MM의 지분 131,698분의 21,682를 매수한 후 1989. 9. XX. 소유권이전등기를 마쳤다. 나. 하GG, HH화학, JJJJJ, KK공업(대표이사 정NN)과 추LL(이하 '중소기업 5개사'라고 한다)은 1989. 9.경 이 사건 대지에 총 15층 합계 390세대의 CC동 PP맨션(이하 '이 사건 아파트'라고 한다)을 신축하기로 하고, 아파트 건축사업을 원활히 추진하기 위하여 QQ개발 주식회사를 별도로 설립한 후 대표이사로 정NN을 선임하여 1989. 11. XX. 건축주를 하GG, HH화학, JJJJJ, KK공업, 추LL, QQ개발 주식회사로 하는 근로자 임대공동주택 건설사업승인을 받았다(이하 '이 사건 사업'이라고 한다).다. 중소기업 5개사는 1990. 4. XX. PP건설 주식회사와 아파트 신축공사 도급계약을 체결하고, 1992. 4. XX. 아파트가 완공되면 지분을 교환하는 방식으로 특정 세대를 단독소유하기로 합의하였다(이하 '이 사건 합의'라고 한다). 라. KK공업의 경영이 악화되자, △△PP아파트 입주자대표회의(이하 '입주자대표회 의'라고 한다, KK공업의 근로자들로서 합의에 따라 KK공업이 단독 소유하기로 한 전유부분을 임차한 사람들로 구성된 집단인데, 이와 같은 명칭을 사용하였다)는 1992. 5. XX.경 KK공업, 정NN과 이 사건 사업과 관련된 모든 지위 및 권리를 승계하기로 하는 계약을 체결하였다. 마. 이 사건 아파트는 1992. 6.경 완공되었는데, 101동 XXX세대 15,275.76㎡(1세대당 전용면적 84.78㎡), 102동 XXX세대 11,259.15㎡(1세대당 전용면적 59.91㎡, 공유면적 15.151㎡), 103동 XX세대 9,541.44㎡(1세대당 전용면적 84.92㎡, 공유면적 21.096㎡), 상가동 2,341.14㎡로 구성되어 있다.

F. From July 1992, the sectional owners, including the Plaintiff, moved into their respective sections of exclusive ownership and filed a move-in report. Five small and medium enterprises, etc. were sentenced to each fine on July 23, 1993 due to the violation of the Building Act, including the following: (a) from the OO District Court AA branch on July 23, 1993 to the KO District Court AA branch on July 23, 1993 to allow the moving-in of an apartment 101 Dong 806 without obtaining approval for the use of the apartment 100 households until January 1993.

G. ParkS and Jeon NT filed a lawsuit against K Industries and Jung NN on the status of the representative of the council of occupants' representatives seeking the implementation of the procedures for ownership transfer registration under the OA branch AD branch AD branch AJJJJJJ, and PPL (hereinafter referred to as "4 companies") on August 7, 1995, the OO district court rendered a decision that "K Industries, Jeong NN will implement the procedures for ownership transfer registration on the instant land to ParkS and Jeon NN's ownership on October 2, 1991, with respect to the title of KG and Jeon NN's ownership on the instant land, and on October 2, 1994, the decision was made on October 1, 199, that "HaGG, Hm chemical, JJJJJJJ, and YL (hereinafter referred to as "the owner of an apartment building construction project"), revised the plan for ownership transfer registration on July 2, 1995, and received approval from the council of occupants' representatives, HaJJJJJJJ, and YJJ.

I. The apartment of this case did not undergo a pre-use inspection even until now, which is part of the site.

This is because several provisional seizures and provisional dispositionss have been registered with respect to shares owned by HaG, KK industry and fixed NN, and the bonds and debt relations with respect to apartment site have not been arranged due to the completion of the registration of the establishment of a neighboring mortgage.

(j) As to the section for exclusive use (AAA City BCC, B-X PP apartment 101, 605), the Plaintiff was subject to a decision of acceptance with respect to the provisional injunction on real estate disposal (AAAAA District Court 2005Kahap9x9x), the Plaintiff completed the registration of ownership transfer in the name of HaGG, H chemistry, JJJ, JJJ, QJL, and the council of occupants' representatives. The Plaintiff and the owner of the relevant section for exclusive use filed a lawsuit against five small and medium enterprises to seek implementation of the procedures for ownership transfer registration on the instant site based on the acquisition of the section for exclusive use. On October 10, 2012, the first instance court ordered the Plaintiff and the owner of the relevant section for exclusive use to implement the procedures for ownership transfer registration on the relevant site. On the other hand, the lower court decided that the Plaintiff and the owner of the said section for exclusive use was reconciliation with the first instance court 2013, which became final and conclusive on July 14, 201.

(l) Of the instant site:

1) The director of the AA Tax Office under the jurisdiction of the defendant Republic of Korea shall pay for the delinquent taxpayer's share in AAM.

On May 2, 1989, the court completed each seizure registration under the same court under Article 26(2) of the Civil Code with respect to the portion of the delinquent fixed NN’s share under Article 18(2) of the Civil Code. 2) The Ministry of Labor (AA local labor office) under the jurisdiction of the defendant's Republic of Korea completed the seizure registration under Article 17(2) of the Civil Code.

The AAA District Court completed the attachment registration according to No. 4810 on August 2, 1992.

3) The director of the YY Tax Office under the Defendant’s Republic of Korea shall have the same court as regards the delinquent taxpayer’s share of the K Industries under AAAA District Court No. 13 XX received on October 1992, and as regards the delinquent taxpayer’s share of YN.

On August 8, 1993, the head of the Z district tax office under the Defendant’s Republic of Korea completed each seizure registration under the same court’s receipt No. 309 XX with respect to the portion of the delinquent HaG’s share under Article 34 XX. 4) The head of the Z district tax office under the Defendant’s Republic of Korea with respect to the delinquent Y’s share.

On April 2013, courts completed seizure registration under XX. 281 XX.

5) With respect to Defendant AA Metropolitan City B, JungN did not pay aggregate of the aggregate land tax, etc. O, OOO, OOO, HaG, and HaG in arrears. Defendant AA Metropolitan City’s Jung-gu completed the attachment registration under AAAA District Court No. 94m. received on April 1993 with respect to the portion of paid-in NN’s shares under the AAA district court No. 94m. received on March 2, 1998 with respect to the delinquent taxpayer’s shares under the same court No. 141m. received on March 2, 1998.6) Defendant AA Metropolitan City DD completed the attachment registration under the AA District Court No. 659m on November 1, 1998 with respect to the delinquent debtor’s shares.

(7) As for the portion of the delinquent taxpayer’s shares, the defendant AA Metropolitan City E-gu completed each seizure registration under the same court No. 678 of Dec. 1999 with respect to the delinquent taxpayer’s shares, AAA District Court No. 94 XX (amended by the disposition authority on July 15, 1997). The defendant FF completed the seizure registration under the AAA District Court No. 1060 of Feb. 15, 1993 with respect to the delinquent taxpayer’s shares. (8) The HaG defaulted defaulted on the aggregate of the aggregate land tax at the time of the defendant FF as of October 2001. The defendant FF completed the seizure registration under the AA District Court No. 1060 of Feb. 2, 2003 with respect to the delinquent taxpayer’s shares as the preserved bond.

[Ground of recognition] In without dispute, Gap evidence Nos. 1, 3, 4, Gap evidence Nos. 6 through 9, Eul evidence Nos. 2 and 3, Eul evidence Nos. 1 (including each number; hereinafter the same shall apply), the fact inquiry to the head of AA City B in this Court, the purport of the whole pleadings, and the purport of the argument as a whole.

2. Determination as to the cause of action

A. The plaintiff's assertion

Before the seizure registration of the defendants is completed, each of the apartment buildings of this case has already met the requirements of independence in structure and use. Since each of the apartment buildings of this case has a sectional ownership, the plaintiff acquired the right to use site under Article 2 subparagraph 6 of the Act on Ownership and Management of Condominium Buildings (hereinafter "the Aggregate Buildings Act"). However, although the building site of this case and apartment are restricted from the separate disposition in accordance with the main sentence of Article 20 (2) of the Aggregate Buildings Act, the registration of each of the defendants' registrations of seizure against the above provisions should be cancelled.

In order to establish sectional ownership of one building, there exists one building in an objective and physical aspect, and there is a separate act to divide the building parts into the objects of sectional ownership, as well as the physically partitioned building parts of one building into the objects of sectional ownership without changing the physical form and quality of the building. Here, division act is a kind of legal act that intends to divide a specific part of a building into the objects of sectional ownership without changing the physical form and quality of the building. It is not a special restriction on the timing and method, but it is recognized if the intention of dividing the disposal authority is objectively indicated from the outside. Therefore, even before the physical completion of a sectional ownership, if the intention of dividing the building into the newly constructed building is objectively indicated, it can be recognized that the division act exists, and if the building and the sectioned part corresponding to the division act is completed objectively and physically, the building still has been registered in the aggregate building register or the building has not been registered in the register, and even if the ownership transfer registration has not yet been completed in the form of a sales contract with the owner of an aggregate building, the ownership transfer registration requirement of an aggregate building was not completed.

One person also has the right to occupy and use the site of a building for the ownership of a section for exclusive use as the validity of a sales contract. Such right to occupy and use is the right to use site, which is the right that a sectional owner under Article 2 subparagraph 6 of the Aggregate Buildings Act has against the site of a building in order to own a section for exclusive use. Article 20 of the Aggregate Buildings Act provides that a sectional owner's right to use site shall follow the disposition of the section for exclusive use (Article 20), a sectional owner may not dispose of his/her right to use site separately from the section for exclusive use (Article 2 (2) and (4) unless the purport of the prohibition of separate disposal is registered (Article 3). The purport of the provision is to prevent the separation of the section for exclusive use and the right to use site from occurring to the third party who has acquired the right to use site in good faith (Article 2 (3)). The purpose of the provision is to ensure stability in legal relations and rational discipline in the aggregate building by preventing the creation of sectional ownership without the right to use site (Article 3).

see, e.g., Supreme Court Decision

C. Determination

1) The five small and medium-sized companies are to newly construct the apartment of this case, and they are XX on November 1, 1989.

The fact that an employee rental housing construction project approval was obtained, and the apartment house was completed on June 192, 192, and five small and medium enterprises from June 1992 to January 1, 1993 without obtaining approval for the use of the entire 390 households from June 1992 to that of January 1, 1993. The Defendants completed each seizure registration with respect to DomM, HaG, △△△△, and Cheong NN among the instant land from around May 1, 1989 to around April 2013.

2) In light of the above facts, five small and medium enterprises obtain approval for the construction project of the apartment of this case and sell the section for exclusive use to each sectional owner, etc. physically partitioned into one building.

There was an act of dividing the building parts into the objects of sectional ownership, and apartment was the apartment on 192.

6.As completion of landscaping, there was one building in an objective and physical aspect, and starting around that time.

Each sectional owner shall have a divided building structure, such as moving into the section for exclusive use and moving-in reports.

Along with the independence of the award and use.

Therefore, sectional owners, such as the plaintiff, etc., have the sectional ownership of each section for exclusive use around June 192.

As to a site, the registration of shares was not completed yet.

As the effect of the Do sales contract or sales contract, the site of the building for the ownership of the section for exclusive use.

There is a right to possess and use, and such right to possess and use is different from that of a simple right to possess and use.

Section 2 subparagraph 6 of Article 2 of the Aggregate Buildings Act, which is a principal right, owns a section of exclusive ownership.

for purposes of this section, a right to use the site as a right to the site of the building.

3) Other exclusive ownership by agreement or notarial deed as stipulated in Article 20(2) and (4) of the Aggregate Buildings Act.

There is no evidence to prove that there is a provision to dispose of the right to use site separately from the part.

As to the site of this case, the registration of the defendants' remaining seizure except for the seizure registration completed by the head of AAA under the jurisdiction of the defendant's Republic of Korea on May 2, 1989 in relation to the portion of delinquent DoM's share is null and void against the prohibition of separate disposition under the main sentence of Article 20 (2) of the Multi-Family Building Act, since sectional owners such as the plaintiff acquired sectional ownership and right to use site after June 1992.

In addition, according to the latter part of Article 265 of the Civil Code, co-owners can perform the act of preserving the article jointly owned by each person.

Therefore, the plaintiff, who is a right holder of the land, can seek cancellation of each seizure registration of the land as an act of preservation of the jointly-owned property.

4) Accordingly, the Defendants excluded Defendant Republic of Korea from the registration of seizure of XX. 5 May 1989 to the Plaintiff.

There is an obligation to implement registration procedures for cancellation of each registration of seizure.

3. Conclusion

Thus, the plaintiff's claims against the remaining defendants except the defendant Republic of Korea are justified.

claim against the defendant Republic of Korea shall be accepted within the extent of the above recognition, and

M. The claim shall be dismissed as it is without merit. It is so decided as per Disposition.