[1] In a case where a seller of an aggregate building transfers the ownership of a section for exclusive use to a sectional owner, and the site is registered for the transfer of ownership only for a part portion and the remaining shares are left in his/her name, whether the seller or transferee who acquired the share of ownership may claim a co-ownership share of the site against the sectional owner (affirmative with qualification), and whether the same applies to a case where the transferee acquires the share of the site in the procedure

[2] Meaning of “a bona fide third party” under Article 20(3) of the Act on the Ownership and Management of Aggregate Buildings, and whether “a third party believed to know the existence of an aggregate building on land, but believed to have determined that a section for exclusive use and a right to use a site may be separately disposed of with regulations or notarial deeds regarding the pertinent land or its share (affirmative)” (affirmative)

[1] Under the Act on the Ownership and Management of Aggregate Buildings, a sectional owner’s right to use a site shall be subject to the disposition of his/her exclusive ownership (Article 20(1)). In principle, a sectional owner cannot dispose of his/her right to use a site separately from his/her exclusive ownership. However, this does not apply where otherwise prescribed by the regulations (Article 20(2) of the same Act). A person who owns the whole or an appurtenant building of a building may determine the ownership corresponding to the said regulations by a notarial deed (Articles 3(4) and 3(3) of the same Act). Therefore, if an aggregate building purchaser transfers the ownership of a exclusive ownership to a sectional owner and leaves the remaining shares in his/her name only after the completion of the registration of ownership transfer and the transfer of ownership remains in his/her own name, special circumstances should exist, such as that the seller or transferee may separately dispose of his/her exclusive ownership and the right to use the site with regulations or notarial deeds if he/she intends to claim a co-ownership right to the site against the sectional owner.

[2] The prohibition of separate disposal of an aggregate building under the main sentence of Article 20(2) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) refers to a third party who has acquired a real right in good faith unless its purport is registered (Article 20(3) of the Aggregate Buildings Act). In principle, “the third party” refers to a third party who has acquired a land which is the object of the right to use the site without gathering the circumstances in which the aggregate building is a site. Although the fact that an aggregate building exists on the land was known, it also includes a third party who has believed that the relevant land and the right to use the site can be separately disposed of by regulations or notarial deeds (hereinafter “notarial deed, etc.”) with regard to the relevant land. However, in light of the purport of Article 20 of the Aggregate Buildings Act, which seeks to ensure rational stability and reasonable regulation, and the purport of Article 20(3) of the same Act which does not require the third party to acquire a portion of the right to use the site, such as where the third party has not acquired a right to the site.

[1] Articles 3(3) and 20 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 20 of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Decision 2013Da33577 Decided November 14, 2013 (Gong2013Ha, 2210) / [2] Supreme Court en banc Decision 2010Da71578 Decided January 17, 2013 (Gong2013Sang, 298)

[Judgment of the court below]

Attached List of the Defendants (Law Firm, Kim & Lee LLC et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2017Na34614 Decided February 21, 2018

The judgment below is reversed and the case is remanded to the Seoul Central District Court.

1. The reasoning of the lower judgment reveals the following facts.

A. (Coin) obtained a construction permit for the aggregate building of four underground floors and the ○○○○○○ Building (hereinafter “instant building”) on the premises of 704 square meters ( Address omitted) in Gangnam-gu Seoul Metropolitan Government (hereinafter “instant land”) and completed the construction, and obtained the approval for the use on September 16, 2005.

B. On October 5, 2005, Co., Ltd completed the registration of ownership transfer on the instant land due to the attribution of trust property. On the same day, the registration was completed as to the ownership ownership of the instant building with respect to the portion of 655.56/704 out of the instant land, but the remaining 48.4/707 shares (hereinafter “instant shares”) were left in the name of (ju) Co., Ltd without the registration of ownership. On the same day, Co., Ltd made registration of ownership preservation as to each of the instant sectional sections of the instant building, and registration of ownership indication was completed by each sectional section, “the right to site, September 16, 2005,” “the right to site,” “the right to site,” and “the right to site ownership,” a type of “the right to site ownership,” respectively. The aggregate of each section of exclusive ownership is 655.56/704.56/704.

C. Since then, a provisional attachment or a disposition on default was made for the instant shares. The Plaintiff purchased the instant shares in the public sale procedure on November 23, 2015 and completed the registration of ownership transfer on December 17, 2015. Meanwhile, the Defendants, as sectional owners who transferred and acquired each of the instant buildings, occupy and use the entire instant land as the site of the instant building.

2. The judgment of the court below

A. In addition to the above facts, in light of the following facts: (a) on October 5, 2005, Eco applied for the registration of preservation of ownership on each of the sectional sections of the building of this case and there was no notarial deed, etc. among the documents attached to the documents submitted to the registry on October 5, 2005; (b) on the part of Eco’s representative director, Nonparty 1 of Ecoco or Nonparty 2 of the certified judicial scrivener who entrusted the registration of preservation of ownership on the building of this case with the duties of the registration of preservation of ownership, and the testimony or reply that there was no notarial deed, etc. as to the separate disposition of the right to use the site and the exclusive ownership of this case, it is doubtful that the notarial deed, without attaching a notarial deed stating that the ownership of this case may be disposed of separately from the section of exclusive ownership, is not carried out lawfully; and therefore, the acquisition by the Plaintiff of

B. However, following the record, the following facts are as follows: (i) a right to a site registration, in which the aggregate ratio of the right to a site to the whole aggregate building is less than one, appears to be in principle to be attached to the relevant regulations or notarial deeds at the time of application for registration in order to make a registration to that effect, (ii) a right to a site can be separately disposed of by regulations or notarial deeds from among the right to a site use; (iii) a right to a site may be separately disposed of if it is not registered even if it is a right to a site, and there is a possibility that a sectional ownership and a right to a site may be separately disposed of. Therefore, the Registration of Real Estate Act has a system for a right to a site registration, which does not register the right to a land that is disposed of as a whole with a section for exclusive use and records the validity of such registration in a building, and such a right to a site registration is registered to the effect that such a right to a site registration is substantially separate from the above shares, and (iii) the sum of the share ratio of each section for exclusive use is consistent with the above shares.

3. Judgment of the Supreme Court

A. (1) In a case where the sectional owners of one aggregate building, which is an aggregate building, co-ownership of the site of the building, each sectional owner has a legitimate right to use all the site according to the purpose of use, irrespective of the share of co-ownership in the site, unless there are special circumstances, such as the existence of separate regulations. In this case, “site of a building” includes all the land on which the aggregate building is built, unless there are special circumstances.

(2) According to the Act on the Ownership and Management of Aggregate Buildings (hereinafter “ Aggregate Buildings Act”), a sectional owner’s right to use a site shall follow the disposition of his/her exclusive ownership (Article 20(1)).

In principle, a sectional owner shall not dispose of the right to use site separately from his/her section of exclusive ownership. However, the same shall not apply where otherwise prescribed by the regulations (Article 3(2) of the same Act). A person who owns the whole or an appurtenant building of a part of a building may determine the ownership corresponding to the regulations by notarial deed (Articles 3(4) and 3(3) of the same Act). Therefore, the same shall apply to cases where an assignee of an aggregate building transfers the ownership of an exclusive ownership to the sectional owner, but in cases where the seller of an aggregate building transfers the ownership of a part of the site only to the sectional owner and leaves the remainder of the ownership in his/her name, he/she may separately dispose of the ownership right to the section of exclusive ownership and the right to use site by regulations or notarial deeds (hereinafter referred to as “notarial deed, etc.”) if he/she intends to claim a co-ownership right to the building site against the sectional owner (see, e.g., Supreme Court Decision 2013Da3577, Nov. 14, 2013).

(3) The prohibition of separate disposal under the main sentence of Article 20(2) of the Aggregate Buildings Act refers to a third party who has acquired a real right in good faith unless the purport thereof is registered (Article 20(3) of the Aggregate Buildings Act). The third party of the aggregate building refers to, in principle, a third party who has acquired a land which is the object of the right to use the site without gathering the circumstances that have been formed as a site of an aggregate building (see, e.g., Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013). If an aggregate building exists on such land, the third party is believed to be able to separately dispose of the right to use the site by means of an authentic document, etc. However, in light of the purport of Article 20(3) of the Aggregate Buildings Act and the purport of Article 20(3) of the same Act to ensure rational stability in legal relations between the exclusive ownership of an aggregate building and the right to use the site, the fact that the remaining portion of the right to use of the site is not required by an auction.

B. We examine the judgment of the court below in light of the aforementioned legal principles.

The mere fact that a right to a site has been registered only for a part of the instant land, which is a site for an aggregate building, cannot be deemed as a matter of course to constitute a bona fide third party under Article 20(3) of the Aggregate Buildings Act. Rather, in light of the current status, etc. of the instant building and land, it is difficult to find it difficult to find the necessity to separately dispose of the instant shares from the remaining part of the site, and there is no reason to deem that the Plaintiff was aware that there was such need. Moreover, in addition to the fact that only some of the instant land was registered as a right to a site, the Plaintiff did not present any specific grounds to believe that the rules or notarial deeds allowing a separate disposition was prepared, in addition to the fact that there was a registration of a right to a site, it is difficult to view that the Plaintiff constitutes a bona fide third

C. Nevertheless, the lower court determined that the Plaintiff constituted a bona fide third party under Article 20(3) of the Aggregate Buildings Act solely on the ground that only the portion of the instant land except for the instant shares was registered as a site ownership registration. In so determining, the lower court erred by misapprehending the legal doctrine on “faith” under the aforementioned provision, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

4. 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.

[Attachment] List of Defendants: omitted

Justices Park Jung-hwa (Presiding Justice)