(영문) 대법원 2015.9.10.선고 2013다46047 판결

The part of the judgment of the court below against the plaintiff shall be reversed, and that part of the case shall be remanded to Cheongju District Court Panel Division.

Reasons

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

1. A. Even if a co-ownership of land, which is a right to use the site, is sold together with a section for exclusive use of an aggregate building, in the auction procedure, if the condition of special sale is stipulated that "the right to use the site shall continue to exist before the establishment of the right to use the site, which was set aside by a separate registration on the site of an aggregate building, and shall take over to the purchaser", notwithstanding Article 91 (2) of the Civil Execution Act, the right to use the site

B. Furthermore, in a case where an auction is conducted as to the co-ownership of the land falling under the right to use site, which was established on the site before the establishment of the right to use site, as a separate registration of the right to use site, and the land and public land were sold out from the section for exclusive use, the right to use site for that section for exclusive use expires (see, e.g., Supreme Court Decision 2005Da15048, Mar. 13, 2008). Therefore, in an auction procedure, a person who acquired a co-ownership of land, which is the right to use site, can seek removal of the said section for exclusive use, unless there are special circumstances such as that the owner of the said section for exclusive use, who has lost the right to use site, acquired the right to use site by means of different methods. Furthermore, an agreement between the owner of the said section for exclusive use and the owner of the said section for exclusive use, which is the right to use site, can be seen as having been sufficiently separated from each other’s right to use site by means of sale and public land.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

① On March 28, 1996, the registration of the creation of the right to collateral security (hereinafter referred to as the “instant right to collateral security”) in the name of the Motion Pictures Saemaul Depository (hereinafter referred to as the “New Saemaeul Depository”) and the debtor H was completed with respect to the pertinent site, the registration of the creation of the right to collateral security (hereinafter referred to as the “instant right to collateral security”) in the name of the Motion Pictures Saemaul Depository (hereinafter referred to as the “New Saemaeul Depository”) with the maximum debt amount of KRW 150 million,000,000 and the debtor H.

② On April 13, 1996, G newly constructed neighborhood living facilities and multi-household houses on the fourth floor above the ground, after completing the registration of ownership transfer with respect to the instant site from H, I, and J. On February 15, 1997, G completed the registration of ownership transfer with respect to each partitioned building, including a sectioned building specified in the attached Table of the judgment of the court below (hereinafter referred to as the “section for exclusive use”) which falls under subparagraph 402. In this case, the ownership registration of the instant section for exclusive use was completed at the same time. (3) G completed the registration of ownership transfer with respect to the instant section for exclusive use (hereinafter referred to as the “share for exclusive use”) on March 21, 1997. (4) On March 27, 1997, K completed the registration of ownership transfer with respect to the instant section for exclusive use by having K complete the registration of ownership transfer on the ground of sale with respect to the instant section for exclusive use by the debtor 9,500,000 won.

⑤ After that, as a result of the voluntary auction process with respect to the share of 368.2/557.5, including the share of the instant site, among the instant land, through the execution of the right to collateral security by the Youngju District Court for the execution of the right to collateral security, the Plaintiff purchased the above 368.2/57.5 share on June 2, 2006 and completed the registration of ownership transfer, and accordingly, the registration of the right to collateral ownership as to the instant section for exclusive use, etc. was cancelled.

(6) However, in regard to the decision to commence auction, the public notice of auction, and the decision to permit sale of the instant land shares, the share of the site, which is the object of auction, was specified by specifying that the share of the instant land is not simply a share of 368.2/557.5 shares among the instant land, but a share of the site

7. On the other hand, on August 20, 2008, the registration of transfer of ownership in the name of the defendant was completed on the other hand with respect to the section for exclusive use in this case.

3. Examining these facts in light of the legal principles as seen earlier, B purchased the instant section of exclusive ownership and its site ownership with the condition that “B shall continue to exist and have a purchaser acquire the instant section of exclusive ownership under the condition that special sale conditions are stipulated. Thus, the instant right to collateral security continues to exist without being extinguished by the auction on the instant section of exclusive ownership. Since then, the Plaintiff who purchased the instant share of site, which was separately disposed of in the auction procedure based on the instant right to collateral security, may exercise the right to sell the instant section of exclusive ownership pursuant to Article 7 of the Aggregate Buildings Act, unless there are special circumstances, such as that he acquired the right to use site by other means against B, etc.

Meanwhile, from the time of the new construction of each Section, including the instant section of exclusive ownership, the ownership of a site was registered for all sections from the time of the new construction of each Section of exclusive ownership, and the right to use the relevant section of exclusive ownership and the right to use the site was disposed of as the same as that of the said section of exclusive ownership, and as an ombudsman, the ownership of the instant site, which is the object of auction, was sufficiently publicly announced during the voluntary auction procedure for the share of the instant site, shall not be deemed to have acquired the right to use the site. Therefore, the Plaintiff shall be deemed to have exercised the right to claim the sale of the instant section of exclusive ownership against the Defendant.

Nevertheless, the lower court determined that the ownership of the instant site, which is the object of auction, was a co-ownership share corresponding to the site ownership of the instant exclusive ownership in the auction procedure based on the instant collective security, and thus rejected the Plaintiff’s claim for sale claim regarding the instant exclusive ownership based on the determination that B or the Defendant had the right to use the instant exclusive ownership. In so doing, it erred by misapprehending the legal doctrine on the establishment of the right to sell claim under Article 7 of the Aggregate Buildings Act, thereby making a judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Plaintiff among the judgment below is reversed, and that part of 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 on the bench.