[1] Whether a person who purchased a section of exclusive ownership and a share of a site from a constructor of an aggregate building in the form of sale in lots and paid the price in full, but fails to complete the registration of ownership transfer with respect to a share of a site, has the right to possess and use the site of a building (affirmative), and whether the right to possess and use the site constitutes the right to use the site under Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate

[2] Measures to be taken by the executing court where there is no indication of the right to use the site in the application for the auction of a sectioned building

[1] The actual requirements for acquiring ownership by purchasing a section for exclusive use and a share of a site from the constructor of an aggregate building in the form of parcelling-out and paying the price in full, but a person who has completed only the registration of ownership transfer for a section for exclusive use but has not yet completed the registration of ownership transfer has the right to possess and use the site of a building for the possession of a section for exclusive use by the effect of a sales contract. Such right to occupy and use is a right to use the site of a building, which is the right of a sectional owner under Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings, to own a section for exclusive use.

[2] In the auction of a sectioned building, even if there is no indication of the right to use the site in the application for the auction, the court of execution shall instruct the joint delivery officer to investigate the current status of whether there is the right to use the site, and whether there is a covenant or notarial deed which is capable of separate disposition with the section for exclusive use and the section for common use, and shall collect the necessary data in a way which is possible, such as questioning the related person. As a result, if the existence of the right to use the site, which is an indivisible with the section for exclusive use, has been verified as a result, it shall be included in the auction evaluation as a part of the object for auction, and the minimum bid price shall be determined by including it in the auction evaluation, and

[1] Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings, Article 20 of the same Act, Articles 192 (1) and 263 of the Civil Act / [2] Articles 134 and 140 of the Civil Procedure Act, Articles 85, 97, 105, and 106 of the Civil Execution Act

[1] Supreme Court en banc Decision 98Da45652, 45669 delivered on November 16, 200 (Gong2001Sang, 39) Supreme Court Decision 2000Da10741 Delivered on January 30, 2001 (Gong2001Sang, 532) Supreme Court Decision 2004Da742 Delivered on March 10, 2006 (Gong2006Sang, 600) / [2] Supreme Court Order 97Ma814 Delivered on June 10, 197 (Gong197Ha, 2253)

Re-appellant

Subu District Court Order 2004Ra141 dated October 7, 2004

The reappeal is dismissed.

The actual requirements for acquiring ownership by purchasing a section for exclusive use and a share of a site from a constructor of an aggregate building in the form of sale, and paying the price in full, but a person who has completed only the registration of ownership transfer with respect to share of a section for exclusive use after completing the registration of ownership transfer has the right to possess and use the site of a building for the ownership of a section for exclusive use by the validity of a sales contract. Such right to possess and use is a right to use the site of a building that differs from a simple right to possess, and is a right to use the site of a building that a sectional owner under Article 2 subparagraph 6 of the Act on Ownership and Management of Condominium Buildings owns to own a section for exclusive use (see Supreme Court en banc Decision 98Da45652, 4569 delivered on November 16, 200).

In addition, even if there is no indication on the right to use site in the auction application for an auction against a sectioned building, the court of execution shall instruct the owner of the month to investigate the current status of whether there is a right to use site, and whether there is a covenant or notarial deed which can be separately disposed of with the section for exclusive use and common use, and shall collect necessary data in such a way as to examine the person concerned, and if the existence of the right to use site, which is an indivisible as a whole with the section for exclusive use, has to be included in the auction evaluation as a part of the auction object and determine the minimum bid price by including it in the auction evaluation, and even in the public announcement of the bidding date and the preparation of a detailed statement of bidding items (see Supreme Court Order 97Ma814, Jun. 10, 1997).

In light of the above legal principles and records, although the non-party, who is the number of the parts of each building of this case, has not yet completed the registration of ownership transfer, the court below did not reflect the right to use the site at the minimum sale price of the sale date of this case, although the court of execution had already acquired the right to use the site at the time of establishment of the right to use the site of this case due to the validity of the sale contract, and in the public announcement of the sale date of this case and the preparation of specifications of the sale articles, it is reasonable to determine that only each part of the building of this case was a bid and it was not a site right, which constitutes Article 635(2), Article 633 subparag. 5 and 6 of the former Civil Procedure Act, and that the highest price as the purchaser of this case shall not

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)