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1. The remainder of the amount calculated by deducting the auction cost from the price by selling the forest B with the wife population in Gyeonggi-do and 392 square meters in the auction.
Reasons
1. According to the purport of the entirety of the statements and arguments by the Plaintiff and the Defendants, the Plaintiff and the Defendants share 2/8, Defendant A-A-8, Defendant A-A-A-8, and 1/8 shares of 392 square meters of forest land B (hereinafter “instant real estate”) in Gyeonggi-do, Gyeonggi-do, respectively; and the fact that the agreement on the method of dividing the instant real estate between the Plaintiff and the Defendants was not concluded by the closing date of the pleadings of this case.
2. Determination
A. According to the above facts acknowledged as above, the plaintiff and the defendants shared the real estate of this case, and the parties did not reach an agreement on the method of partition. Thus, the plaintiff as co-owner may claim the division of the real estate of this case against the defendants, who are the remaining co-owners.
B. The partition of co-owned property, based on a judgment on the method of partition, is in principle made in kind so that each co-owner can make a rational partition according to his/her share. However, when it is impossible to divide in kind or the value thereof is likely to substantially decrease due to the division, the court may order an auction of the goods (see Article 269(2) of the Civil Act). Here, the requirement that “it cannot be divided in kind” is not physically strict interpretation, but physically strict interpretation is not to include cases where it is difficult or inappropriate to conduct the partition in kind in light of the nature, location, size, use situation, use value after the division.
The phrase "where the value of the portion is likely to be reduced significantly if it is divided in kind" includes cases where, even if a co-owner is a person, the value of the portion to be owned by him/her is likely to be reduced significantly than the value of the share before the division.
(see, e.g., Supreme Court Decision 2009Da40219, 40226, Sept. 10, 2009). This is based on the foregoing legal doctrine.