1. In the case of a lawsuit for removal of a building from among co-owners, whether or not the co-owned property needs to be measured by partition;

2. Whether it is frequently occupied that the land owned by another person is used as a water use, or it is leased as a whole;

1. The lawsuit concerning the removal of the co-owned property is not a requisite co-litigation, but a co-ownership is not required to be measured separately in the lawsuit against one of the co-owners in respect of the removal of the building.

2. Even if one commenced possession of another’s land for the purpose of using it as water simply, or leased to another person by way of using diversing construction on the water, the above fact alone is difficult to view it as an independent possession.

Article 61 of the Civil Procedure Act, Article 245 of the Civil Act

For use

Defendant 1 and one other

Jeonju District Court Decision 82 Gohap224

1. The original judgment shall be modified as follows:

2. (1) Defendant 1 removed the part of “A” or “B” from the 238 square meters of square meters of square meters of the (detailed number omitted), the part of “A”, which connects each point of “10, 11, 12, 13, and 10” in the attached drawings (except for the part on a ship which connects each point of “10, 11, 12, 13, and 10) in sequence, among the parts of the attached drawings in order, “1, 2, 15, 14, 6, 7, 8, 9, and 10”, “A” or “A”, “a”, from the 210 square meters of square meters of buildings above the 210 square meters of square meters of square meters, and (2) Defendant 2 removed the part of “a 15 square meters of buildings” or “15 square meters of buildings”, in sequence, connected each point of “19,20,21,24, and 19” as above.

3. The plaintiff's remaining claims against the defendants are dismissed.

4. The total cost of the lawsuit shall be three minutes, which is one of which shall be borne by the defendants, and the remaining two shall be borne by the plaintiff.

Main Paragraph 2 of this Article and the Plaintiff, Defendant 1 paid KRW 6,745,200, and Defendant 2 paid KRW 481,800, respectively.

Litigation costs shall be borne by the defendants and a declaration of provisional execution.

The original judgment shall be revoked.

The plaintiff's claim against the defendants is dismissed.

The total costs of litigation shall be borne by the plaintiff.

According to the contents of Gap evidence Nos. 1 and 5-1 and 2 (No. 12 and 13, the same shall apply to the copy of the register) without dispute over the formation, it can be recognized that two parcels of land partitioned on the land cadastre (hereinafter only referred to as the ditches of this case) are registered at 331 square meters at Yju-si (detailed omitted), and the ownership transfer registration is completed on January 28, 1956 under the name of the plaintiff. Since there is no counter-proof, the ditches of this case is presumed to be owned by the plaintiff (the defendant's attorney is presumed to be owned by the plaintiff. In accordance with the order of the court below's decision, the non-party 1 and 5-1 and 2 (No. 12 and 13) were to be owned by the State, but even if the plaintiff's ownership was denied, it is insufficient to recognize that the above contents were owned by the State as owned by the defendant 2 in accordance with the order of the court below's reasoning and evidence No. 3 (No. 6).

The defendants' legal representative asserts that among the buildings of this case, the building owned by the defendant 2 is not owned by the defendant, but owned by the non-party 1, and therefore, it is unreasonable to seek removal of the building. However, even if the building is owned by the two above persons, the lawsuit against the removal of the building is not a requisite co-litigation, and it is not a required co-litigation, and it does not require a separate measurement of the common property in the lawsuit against the one among the co-owners, and it is not reasonable. In addition, in full view of the contents of No. 6 and No. 10 of the certificate of evidence No. 10 and the whole purport of the argument at the court below, the building is registered as co-ownership of the defendant and the non-party 1, but it is not reasonable to recognize the fact that it is a sole owner of the building.

In addition, the defendants' legal representative purchased the ditch of this case from the non-party 2 on April 5, 1937, which is the overall part of the non-party farmland improvement cooperative, which is the general part of the non-party farmland improvement cooperative, and installed the water using the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of the water for the use of it.

In addition, the defendants' legal representative has been continuously expressed in convenience of surrounding land since April 5, 1937 as water used for the main purpose of the above association's use of the ditches, so the period for acquiring the servitude of the above association against the ditches has expired on April 5, 1957, and the defendants are using each part of the ditches of this case from the above association as they are not able to respond to the plaintiff's request because the above association's use of each part of the possession of the ditches of this case can not be permitted. Thus, since the above evidence and the above evidence are not in dispute with the establishment thereof, the defendants' legal representative cannot be used for convenience of the above dominant land and the above part of the dominant estate's use of the dominant estate's use of the dominant estate's main purpose of possession from the above association's owner's owner's 1 to 11, 14-1 to 25-1 to 8, 27-1 to 27 to 14 to 5 to 5 to 197 to see the purport of the above land'sent.

Meanwhile, the Plaintiff’s legal representative asserts that the Plaintiff suffered damages equivalent to the rent for each possession of the instant ditches by the Defendants, and that Defendant 1 suffered damages from Defendant 1, from January 10, 1979, from January 10, 1980 to December 10, 1982, and from December 10, 1982, the Plaintiff’s legal representative sought compensation for damages from Defendant 2. However, there is no evidence to prove that there was any negligence in the Defendants’ possession of each possession of the instant ditches. Rather, according to the facts recognized above, the Defendants are the bona fide occupant who leased and used each possession from the said cooperatives, and therefore, it is unnecessary to determine further.

Therefore, in the case of this case where the defendants did not expressly possess each possession part of the ditches of this case and the title to own the above building is not disclosed, the part of the plaintiff's claim against the defendants of this case concerning the removal of the building of this case and the delivery of each possession part of the building of this case shall be accepted, but the remaining part of the claimant's claim for damages shall be dismissed, with no reason. The judgment of the court below shall be modified as it has been partially different from this conclusion, and the total costs of the lawsuit shall be three minutes, and the remaining two of the defendants shall be borne by the plaintiff, and the provisional execution declaration shall not be attached. It is so decided as per Disposition.

Judges Park Young-sik (Presiding Judge) (Presiding Justice) Kim Jong-young