[1] Whether a person who owned an aggregate building in peace and openly held with his/her intention for 20 years can acquire ownership of a site by registering the ownership of the aggregate building (affirmative); and in such case, the content of ownership of a site acquired by a sectional owner of an aggregate building (=the right to use a site to own

[2] In a case where a sectional owner of an aggregate building jointly occupies the entire site and the acquisition by prescription for the possession thereof has been completed, the scope of the right to use the site owned by the sectional owner (i.e., share in the site according to the ratio of the area of the section owned by the sectional owner)

[1] Since a building cannot generally exist regardless of its site, it can be deemed that the owner of the building occupies the land, which is the site of the building. In such cases, even if the owner of the building does not possess the building or site actually, it shall be deemed that he/she occupies the site for the purpose of owning the building.

In addition, since possession refers to the de facto control of the object, it is possible to possess only a specific part of the one, but it is difficult to see that only a part of the ownership is actually controlled and possessed.

Therefore, the sectional owners of one building jointly own the entire site of the building, barring any special circumstance, since they shared the section for exclusive use while partitioned ownership. This is also applicable to “Possession” as referred to in the prescription for acquisition by prescription for possession of the site of an aggregate building. Therefore, a person who jointly and openly owned an aggregate building for twenty (20) years can acquire ownership of the site by registering the ownership of the aggregate building. In the event the acquisition by prescription for possession has been completed, the ownership of the site acquired by the sectional owners of an aggregate building constitutes the right

[2] Article 20(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”) provides that a sectional owner’s right to use a site shall follow the disposal of his/her exclusive ownership (Article 20(1)), and that a sectional owner shall not dispose of his/her right to use a site separately from his/her exclusive ownership except as otherwise provided by the regulations (Article 20(2)). Furthermore, each co-owner’s share of the Act declares the unity of the exclusive ownership and the right to use a site. Furthermore, each co-owner’s share of the aggregate building is in accordance with the ratio of the area of his/her exclusive ownership (Article 12(1)) to the disposal of each exclusive ownership unless otherwise provided by the regulations (Articles 21(1) and 12). In cases where a sectional owner owns two or more exclusive ownership, the right to use a site is clearly intended to comply with the ratio of the right to use a site that corresponds to several exclusive ownership in the case of disposing of the exclusive ownership (Articles 21(1) and 12).

If a sectional owner completed only a part of the sectional owners at the time of the completion of the prescription for the acquisition of possession of a part of the site of an aggregate building, and some of the sectional owners did not complete such registration, barring any special circumstance, the sectional owners may file a claim against the registered titleholder for the transfer of share due to the completion of the prescription for the acquisition of possession on the portion insufficient from the share to be registered as the site

[1] Articles 192 and 245(1) of the Civil Act, Article 2 subparag. 6 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 245(1) of the Civil Act, Articles 12(1), 20(1) and (2), and 21(1) of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Decision 2002Da57935 Decided November 13, 2003 (Gong2003Ha, 2314) Supreme Court Decision 2012Da7670 Decided September 4, 2014

Plaintiff

Korea Land and Housing Corporation (Attorney Kim Jong-soo, Counsel for defendant-appellant)

Seoul Western District Court Decision 2011Na9710 decided July 19, 2012

The part of the judgment of the court below concerning the conjunctive claim is reversed, and that part of the case is remanded to the Seoul Western District Court. The appeal as to the plaintiff's primary claim is dismissed.

The grounds of appeal are examined.

1. Factual basis

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. In around 1963, the Defendant constructed ○○ apartment on each land listed in the list of the previous land owned by it (hereinafter “Before land substitution”), and completed the sale and conversion for sale by up to 1967. The buyer of ○○ apartment before land substitution by up to 1991 completed the registration of site ownership as to the remaining portion of the land owned by the Defendant, excluding the shares of 381.07/4,946.5, out of the land before land substitution by up to 1991.

B. The △ apartment reconstruction association removed ○○ apartment on May 1, 1992 and started a new construction of reconstruction apartment on the land before replotting, and obtained approval for the use of the apartment of this case on May 16, 1997.

C. On December 9, 199, the land before replotting changed to each of the instant land through the procedure of land substitution and the completion of land partition rearrangement, and the Defendant’s above shares in the land before replotting changed to the share of 78.249/44,946.5 of each of the instant land.

D. Meanwhile, on October 29, 1992, the Plaintiff purchased 106 Dong 303 of the instant apartment from the △△ apartment reconstruction association, and paid the price in full. The Plaintiff completed the registration of ownership transfer on October 23, 1997 with respect to the section for exclusive use.

E. In most of the buyers or owners of the apartment of this case completed the registration of transfer of ownership or site ownership of each of the instant lands. However, the Plaintiff and Nonparty 1 and Nonparty 2, the owner of the instant apartment of this case 107 Dong 1601, only completed the registration of ownership transfer and did not complete the registration of site ownership.

2. Judgment as to the main claim

The Plaintiff’s primary claim, as the land of this case was incorporated into the land subject to the right to use site when △ apartment reconstruction association obtained approval for the use of the apartment of this case, and accordingly, △ apartment reconstruction Association in subrogation of △△ apartment reconstruction Association, sought the implementation of the transfer registration procedure on May 16, 1997 as to the share of 37.421/4,946.5, which is part of the Defendant’s share in each of the land of this case against the Defendant.

The court below determined that the △ apartment reconstruction association cannot be deemed to have acquired shares in the above site or to have the right to claim the registration of transfer of shares in the above site solely on the ground that △ apartment reconstruction association obtained approval for use of the apartment of this case.

The mere reason for obtaining approval for use of an apartment that is a sectioned building is that the reconstruction association, the owner of the apartment, has no title to acquire the ownership of the part of the site due to sale, etc., and cannot be deemed to have acquired the right to claim the registration of transfer thereof. Such judgment below is justifiable. Contrary to the allegations in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by exceeding the principle of pleading, or by misapprehending

3. Judgment on the conjunctive claim

A. Generally, a building cannot exist regardless of its site. Thus, the owner of the building can be deemed to possess the land that is the site of the building. In such cases, even if the owner of the building does not actually possess the building or its site, it shall be deemed that he/she occupies the site for the ownership of the building (see Supreme Court Decision 2002Da57935, Nov. 13, 2003, etc.).

In addition, since possession refers to the de facto control of the object, it is possible to possess only a specific part of the one, but it is difficult to see that only a part of the ownership is actually controlled and possessed.

Therefore, inasmuch as sectional owners of one building share the section for exclusive use as they jointly own the section for exclusive use, barring any special circumstance, they jointly possess the entire site of the building (see Supreme Court Decision 2012Da7670, Sept. 4, 2014). This is also applicable to “Possession” as referred to in the prescription for the acquisition by prescription for the possession of a site for an aggregate building, a person who has jointly owned an aggregate building for twenty (20) years and openly owned an aggregate building may acquire ownership by registering the ownership of the site. In the event the prescription for the acquisition by prescription is completed, the ownership of the site acquired by the sectional owners of an aggregate building constitutes the right to use the site for

The Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act”) stipulates that a sectional owner’s right to use a site shall follow the disposition of his/her section of exclusive ownership (Article 20(1)); and that a sectional owner shall not dispose of his/her right to use a site separately from his/her section of exclusive ownership except as otherwise expressly prescribed by the regulations (Article 20(2)); thereby declaring the unity of each section of exclusive ownership and right to use a site. Furthermore, each co-owner’s share is in accordance with the ratio of his/her section of exclusive ownership (Article 12(1)) to the size of his/her section of exclusive ownership (Article 12(1)); and that where a sectional owner owns two or more sections of exclusive ownership, the right to use a site shall comply with the disposal of each section of exclusive ownership (Articles 21(1) and 12) unless otherwise prescribed by the regulations (Article 21(1)). In light of such purport, the purport of the Act should be that a sectional owner’s right to use a site should in principle comply with the ratio of exclusive ownership.

If a sectional owner completed only a part of the sectional owners at the time of the completion of the prescription for the acquisition of possession of a part of the site of an aggregate building, and some of the sectional owners did not complete such registration, barring any special circumstance, the sectional owners may file a claim against the registered titleholder for the transfer of share due to the completion of the prescription for the acquisition of possession, with respect to the deficient portion of shares to be registered as

B. On June 14, 1991, the Plaintiff commenced the removal of ○○ apartment reconstruction association as preliminary claim, the Plaintiff commenced possession of the remaining portion of the land in the name of the Defendant in a peaceful and public performance. On October 23, 1997, the Plaintiff continued possession of a part of the land in question and the acquisition by prescription has been completed. As such, the Plaintiff sought against the Defendant the implementation of the procedure for the transfer registration of shares on the ground of the completion of acquisition by prescription on June 13, 2011, as to the share of 37.421/4,946.5 of each land in this case.

Based on the above factual basis, the lower court determined that the buyer of the ○○○ apartment did not possess the shares remaining in the name of the Defendant among the land before replotting, and thus, the △ apartment reconstruction association that commenced possession of the shares of the site after being entrusted with a trust for a reconstruction project cannot be deemed to have received possession of the shares of the remaining land in the name of the Defendant.

C. However, examining the factual relations as seen earlier in light of the above legal principles, since the entire land including the remaining shares in the land in the Defendant’s name and the entire land in this case where the land was removed is the apartment site in this case, △△ apartment reconstruction Association occupied the entire land and each land in this case, which is the land before the land was sold, until the apartment building in this case was sold in lots, as the owner who constructed the apartment building in this case, and the Plaintiff, as the sectional owner who purchased 106 Dong-dong 303 apartment building in this case, occupied the entire land before the land substitution, which

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that △ apartment reconstruction association did not possess some of the shares in the land before replotting remaining in the name of the Defendant. In so determining, the lower court erred by misapprehending the legal doctrine on the possession of a building owner’s site, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

The part of the lower judgment regarding the conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The appeal regarding the Plaintiff’s primary claim is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Park Poe-young (Presiding Justice)