Where the area and location of the land in which two or more sectionally owned co-ownership relations have been changed due to the land substitution, the ownership of the land by the former owners;

In a case where land in the so-called sectionally owned co-ownership relation, which is in the mutual title trust relation, has been registered as to the whole part of one parcel of land, although several persons purchased a specific part of one parcel of land, and the registration as to the part other than that part has been registered as a co-ownership in the mutually owned co-ownership relation, if the land changes due to the land substitution, the specific part of the previous land is not specified even after the land substitution. Thus, in the absence of special circumstances where the former owners agreed to own part of the land as the land substituted and maintain a mutual title trust relation, the former owners acquire co-ownership share in the land substitution at the rate corresponding to the previous land.

Article 103 of the Civil Act / [title trust] and Article 262 of the Civil Act, Article 62 of the Land Division and Rearrangement Projects Act

Supreme Court Decision 94Da28406, 28413 delivered on October 25, 1994 (Gong1994Ha, 3099), Supreme Court Decision 93Da52150 delivered on November 18, 1994 (Gong1995Sang, 48), Supreme Court Decision 95Da7437 delivered on July 14, 1995 (Gong1995Ha, 2803), Supreme Court Decision 95Da15742, 15759 delivered on July 25, 1995 (Gong195Ha, 2954)

Plaintiff

[Defendant-Appellant] Republic of Korea and five others (Attorney Choi Sun-soo, Counsel for defendant-appellant)

Incheon District Court Decision 94Na4509 delivered on December 1, 1995

The judgment below is reversed, and the case is remanded to Incheon District Court Panel Division.

1. We examine the Plaintiff’s grounds of appeal.

According to the reasoning of the judgment below, since the above portion of the share of the non-party 1 was owned by the non-party 4 on October 11, 1948 on the non-party 1, which was owned by the above non-party 4 on the non-party 1, and the share of the non-party 9 was owned by the non-party 1 on June 20, 197 and sold to the non-party 5 on the non-party 1, a total of 63.6 of the land of this case on June 6, 197, and the part of the non-party 1, which was sold to the non-party 9 on September 6, 1960 on the non-party 1, which was owned by the non-party 4 and the non-party 9 on the non-party 1's share of this case on the non-party 1, which was owned by the non-party 1, the non-party 2 sold the remaining part on the non-party 1, the non-party 1978.

However, in a case where the land in the mutual title trust relation, in which several persons purchased a specific part of one parcel of land, but the registration of the part other than that part of the land is a co-ownership transfer registration at the average number of pieces of purchase for the whole parcel of land, and where the land in the mutual title trust relation is a lot of land substitution, if the land in the mutually owned co-ownership relation has changed due to the substitution, the specific part of the previous land is not specified even after the substitution. Thus, unless there are special circumstances that the co-owners agreed to own a part of the substituted land and maintain a mutual title trust relation, the previous owners shall acquire co-ownership share for the substituted land at the rate corresponding to the previous land (see Supreme Court Decisions 94Da28406, 28413, Oct. 25, 1994; 93Da52150, Nov. 18, 1994, etc.).

However, according to the court below's legal determination, 979 square meters of land before the land substitution of this case was reduced to 633.6 of each of the land of this case due to land substitution, and according to the records, the area occupied by sectional owners before and after the land substitution was reduced to exceed the share area and part of the land was below the share area. Thus, if there are such circumstances, it is extremely exceptional that the sectional owners whose possession area was reduced to allow it as it is, and there is no evidence to prove that the co-owners after the land substitution of this case to maintain a mutual title trust relationship by deciding to own some of the land as the substitute land among the co-owners after the land substitution of this case.

Nevertheless, the court below held that even after the land substitution in this case, co-owners have maintained sectionally co-ownership relationship even after the land substitution in this case. Thus, the court below erred by misunderstanding the legal principles as to sectionally owned co-ownership relationship or misunderstanding facts without evidence, and it is obvious that such illegality has affected the conclusion of the judgment. Thus, the court below's decision has a ground to point this out.

2. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Sung-sung (Presiding Justice)