[1] Even if a certain portion of the co-owner's land exclusively occupied and used is within the scope of the area equivalent to the share ratio, whether another co-owner who does not use or benefit from the co-owned land at all has the duty to return unjust enrichment corresponding to his/her share (affirmative)

[2] The nature of the obligation to return unjust enrichment due to the joint possession and use (indivisible obligation)

[1] Co-owners of land may use and make profits from the whole land according to their shares, but unless a majority of shares are agreed among co-owners as to the specific method of use and profit-making, one is unable to exclusively occupy and use a specific part. If a part of co-owners exclusively occupy and use a specific part, even if the area of the specific part is within the area equivalent to their shares ratio, they shall be deemed to have made unjust enrichment corresponding to their shares for the person who has a share of other co-owners but has no use or profit-making profit-making, and all co-owners have the right to use and profit-making from the whole share ratio.

[2] Where multiple persons jointly use another person's property without any legal cause, the obligation to return unjust enrichment is indivisible for the return of indivisible profits, barring special circumstances. The indivisible obligation is the obligation of each obligor to perform the entire obligation, and the other obligor is also exempted from the obligation due to one person's performance of obligation.

[1] Articles 263, 265, and 741 of the Civil Act / [2] Articles 265, 411, and 741 of the Civil Act

[1] Supreme Court Decision 72Da1814 delivered on December 12, 1972 (No. 20-3, No. 194), Supreme Court Decision 88Meu33855 delivered on September 24, 1991 (Gong1991, 2590) / [2] Supreme Court Decision 80Da2587 delivered on August 20, 1981 (Gong1981, 14290), Supreme Court Decision 91Da3901 delivered on October 8, 1991 (Gong191, 2678), Supreme Court Decision 92Nu202 delivered on September 22, 1992 (Gong192, 3016)

Plaintiff 1 and 10 others (Attorney Gyeong-soo, Counsel for the plaintiff-appellant)

1. The term "public interest rate" means the amount calculated by using the term "public interest rate" in this paragraph.

Seoul High Court Decision 98Na19648 delivered on January 18, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. Co-owners of land may use and make profits from the whole land according to their shares, but unless a majority of shares of co-owners have agreed on the specific method of use and profit-making, one of the co-owners cannot exclusively occupy and use a specific part, and if a part of co-owners exclusively occupy and use a specific part, even if the area of the specific part is within the area equivalent to their share ratio, they shall be deemed to have made unjust enrichment corresponding to their share for the person who has a share of other co-owners but has no use or profit-making, even if the area of the specific part is within the area equivalent to their share ratio, and they shall be deemed to have been unjust enrichment corresponding to their share for the person who has no use or profit-making. This is because all co-owners have the right to use and profit-making from the whole share ratio (see Supreme Court Decisions 72Da1814, Dec. 12, 197; 8Da3855, Sept. 24, 1

The court below acknowledged the fact that a commercial apartment building was constructed on the ground of the land in this case owned by 21 persons including the plaintiffs, and the defendant recognized the fact that one of the sectional owners of the commercial apartment building was one of the sectional owners of the commercial apartment building, and the defendant, as a sectional owner of the commercial apartment building, obtained the profit equivalent to the rent by occupying and using part of the land in this case, which is the site of the commercial apartment building, in accordance with the ratio of the area of the section for exclusive use among the above buildings, and suffered damages equivalent to the same amount. Thus, the court below determined that the defendant had the duty to return the portion equivalent to the share of the plaintiffs' own interest among the unjust enrichment equivalent to the rent that the defendant gained from the above land, and that the defendant also owned the share of the land in this case, and thus the unjust enrichment does not occur. In light of the records, the court below's fact finding and decision is just and there is no error of law

2. Where multiple persons jointly use another person’s property without any legal cause, the obligation to return unjust enrichment is indivisible for the return of indivisible profits, barring special circumstances. An indivisible obligation is a debtor’s obligation to perform the entire obligation, and the other debtor is exempted from such obligation with one person’s performance (see Supreme Court Decisions 80Da2587, Aug. 20, 198; 92Nu202, Sept. 22, 1992).

The lower court recognized the fact that the Defendant was a co-owner of the underground room 1 in the building No. 229.08 square meters in the building No. 2 among the commercial apartment buildings, and determined that the Defendant was obligated to return unjust enrichment calculated based on the total size of No. 1 in the above underground. 38 (No. 161 pages). However, according to the records No. 38 (No. 38 (No. 161 pages), the above underground No. 1 can be recognized as a co-ownership of the Defendant and the non-party Taedong Development Co., Ltd., and therefore, the above fact-finding by the lower court

However, the defendant and the non-party company are co-owners of the above underground No. 1, and as part of the land of this case, the land of this case, which is the site of the above underground apartment building, was occupied and used according to the ratio occupied by the above underground No. 1 among the above buildings, thereby gaining considerable profit from the rent and causing damage to the plaintiffs, who are co-owners of the above ground of appeal. Thus, as long as this obligation is indivisible, the defendant has a duty to return unjust enrichment equivalent to the rent that the defendant and other co-owners acquired from the other co-owners of the land of this case. As long as this obligation is indivisible, even if only some shares are co-owners, the defendant has a duty to return unjust enrichment as to the whole area of the above underground No. 1, and thus, the above error of the court below is identical

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)