[1] Where one of the co-owners transfers his own share to a third party in a sectional co-ownership relationship, and the part is divided into an independent parcel, and the transferee has completed the registration of ownership transfer in his/her own name, whether the sectional co-owner's sectional co-ownership relationship is terminated (affirmative)

[2] In a case where an owner or a co-owner on the registry is not a true owner, whether such owner can file a claim for the registration of transfer of ownership due to the completion of prescription (negative)

[1] In the so-called sectional co-ownership relationship in which one co-owner owns a specific part of land inside the country, but one co-owner is divided into independent parcel after the co-owner owns a co-ownership share in the margin of registration, and if the co-owner has completed the registration of ownership transfer in the name of sole co-owner, the registration of ownership transfer is valid as it conforms to the substantive relationship. The co-owner is legally entitled to the sole ownership of the relevant land and eventually the co-ownership of the sectional co-ownership as to the relevant co-owner is cancelled. Therefore, even if the former co-owner still has a co-ownership share in the register as to the remaining land which is not divided as above, the registration of the co-ownership becomes null and void as to the object for which the title holder does not have any right, and the former co-owner has no co-ownership right to the remaining land externally, and the former co-owner can file a request for cancellation or correction of the co-ownership share registration which is not effective as above based on his own ownership or co-ownership right.

[2] In a case where the acquisition by prescription is completed, the owner of the pertinent real estate at the time the prescription expires due to the effect of the acquisition by possession shall claim the registration of ownership transfer against the owner at the time of the completion of the prescription, unless there are other special circumstances. Even if the owner is registered as the owner on the registry or co-owner, he/she cannot claim the registration of ownership transfer

[1] Article 103 of the Civil Act / [title trust] Article 262 of the Civil Act / [2] Article 245 (1) of the Civil Act

[2] Supreme Court Decision 2002Da43417 decided May 26, 2005 (Gong2005Ha, 1007)

Plaintiff

Defendant

Daejeon District Court Decision 2008Na3839 Decided August 28, 2008

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

We examine the grounds of appeal.

1. In the so-called sectional co-ownership relationship in which one co-owner owns a specific portion of land inside the register but one co-owner owns a co-owner's share in the register, if the co-owner is divided into an independent parcel after the part owned by him and the co-owner has completed the registration of ownership transfer in the name of his own co-owner, the registration of ownership transfer is valid as consistent with the substantive relationship. The co-owner is legally entitled to the private ownership of the relevant land and eventually the co-owner's co-ownership relationship in the divided co-ownership with the relevant co-owner is terminated. Therefore, even if the former co-owner still has a co-ownership in the register as to the remaining land which is not divided as above, the registration of the co-ownership becomes null and void as to the object for which the title holder does not have any right, and the title holder cannot externally have a co-ownership right to the remaining land, and the former co-owner can request the cancellation of the registration of ownership transfer or correction as above based on his own ownership or co-ownership right.

On the other hand, in case where the acquisition by prescription has been completed, the possessor of the relevant real estate shall obtain the right to claim the transfer of ownership against the owner at the time of the completion of prescription, unless there are other special circumstances, and even if he is the person registered as the owner or co-owner on the registry, unless he is the real owner, he may not claim the transfer of ownership due to the completion of prescription (see Supreme Court Decision 2002Da43417, May 26, 2005).

2. By citing the judgment of the court of first instance, the court below determined that the land at 2,160 square meters (hereinafter referred to as “land before subdivision”) was originally owned by Nonparty 1, and the Defendant purchased at 700 square meters among them and received a share transfer registration for 70/2,160 out of the land before subdivision; the Defendant sold the above land to Nonparty 2 around March 20, 1979; Nonparty 2 did not transfer the ownership registration for the land which was purchased by himself after subdivision and subdivision, and determined that there was an obligation of Nonparty 1 to transfer the ownership of the above land to Nonparty 4 (hereinafter referred to as “the ownership transfer registration for Nonparty 4”) and the ownership transfer registration for the land which was originally owned by Nonparty 1 on June 22, 1994 (hereinafter referred to as “the ownership transfer registration for Nonparty 5”) and the ownership transfer registration for the land which was acquired by himself after subdivision and subdivision for the following reasons:

However, according to the above legal principles, even though the defendant is still registered as the owner of 70/2,160 shares in the register of the land of this case, the registration of shares is null and void due to the removal of sectional ownership relationship due to the sole ownership transfer registration in the future of the non-party 2, and since the defendant has no right to the land of this case, it cannot be the counter-party to the claim for the registration of ownership transfer on the ground of the completion of the acquisition by prescription.

Nevertheless, the judgment of the court below ordering the defendant to implement the procedure for the registration of transfer of ownership of the land of this case on the ground of the completion of the plaintiff's acquisition by prescription is erroneous in the misapprehension of legal principles as to sectionally owned co-ownership and the acquisition by prescription, which affected the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)