(영문) 수원지방법원 2013.12.18 2013가단45491

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(영문) 수원지방법원 2013.12.18 2013가단45491

공유물분할

Text

1. The counterclaim of this case shall be dismissed.

2. Each real estate listed in the separate sheet shall be put to an auction and proceeds therefrom.

Reasons

With respect to the claim of the principal lawsuit of this case against the defendant for a partition of common property, the defendant filed a claim for the counterclaim of this case within the meaning of urging other methods than those asserted by the plaintiff.

However, as a form of partition lawsuit, a party’s application regarding the method of partition is not bound by the court, and the court cannot render a judgment of dismissal of claim solely on the ground that the method of partition asserted by the plaintiff is not reasonable.

Therefore, it cannot be deemed that each claim of the plaintiff and the defendant regarding reasonable division is independent, and it is merely an attack and defense.

Therefore, in a lawsuit for partition of co-owned property, a counterclaim claiming only a method of partition different from the Plaintiff’s assertion is not allowed. Thus, the counterclaim of this case is unlawful.

Co-ownership claim

A. The fact that the Plaintiff and the Defendant shared each of the real estate listed in the separate sheet (hereinafter “each of the instant real estate”) in proportion to one-half shares, and the fact that the agreement on the method of division between the Plaintiff and the Defendant has not been reached until the closing date of the pleadings of the instant case does not conflict between the parties.

B. According to the above facts of recognition, the Plaintiff may request the court to divide the instant real estate in accordance with Article 269(1) of the Civil Act.

3. As a matter of principle, division of co-owned property through a trial on the method of partition of co-owned property shall be conducted in kind as long as it is possible to make a reasonable partition according to each co-owner's share. However, each real estate of this case is an aggregate building and its site, and it is considerably difficult to divide in kind in light of its structure, utilization status, use value after division, etc. In light of the fact that each of the real estate of this case was an aggregate building and its site, and in the trial procedure of this case

참조조문

-민법 제269조 제1항

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