(영문) 대법원 2015.2.12.선고 2012다103851 판결

1. We examine ex officio the legitimacy of the appeal by the defendant Republic of Korea, F, V, X, and AA. The judgment requires that the conclusion be entered in the text of the judgment in order to clarify the judgment of the court. Thus, the judgment in question shall be deemed omitted unless the judgment in the text of the judgment is stated. If the judgment was omitted, the lawsuit in question still remains in the court, and thus, it shall not be subject to legitimate appeal (see, e.g., Supreme Court Decisions 2006Da21323, Aug. 24, 2006; 2007Da69834, Nov. 27, 2008).

According to the judgment of the court below and the records, the court below revealed that the part of the claim against the defendant, Republic of Korea, F, V, X, and AA, which was not withdrawn in the lawsuit, was not determined in the order of the judgment, by changing the judgment of the court of first instance following the takeover succession by the defendant F and the transferee of the defendant F to the AM district redevelopment and maintenance company of the AM district, and the takeover succession by the defendant F and

According to the above legal principles, this constitutes omission of judgment, and thus, the above defendants' claim part lawsuit against the above defendants is still pending in the court below.

Therefore, the above Defendants’ appeal is unlawful as it is not subject to it.

2. We examine the remaining Defendants and the intervenors' grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. According to the reasoning of the lower judgment, the lower court determined that: (a) Defendant Republic of Korea purchased part of the AH land of KRW 1,707 in Yeongdeungpo-gu Seoul Metropolitan Government before the division (hereinafter “AH land before the division”); (b) completed the registration of ownership transfer for shares of KRW 37.3 of the AH land before the division to AI by specifying its location and size; (c) on February 19, 1964, the Plaintiff completed the registration of ownership transfer for shares of KRW 37/1,707 of the AH land before the division; (d) on January 29, 1965, the part of the land sold by AG to AH was divided from AH land; and (e) the Plaintiff acquired part of the AF-149 square meters (hereinafter “AF-land”); and (e) the land purchased from AG-gu Seoul Metropolitan Government 270 square meters before the division and completed the registration of ownership transfer from AJ-127/170 square meters (hereinafter “AF-171/1/7”).

B. However, we cannot accept the above judgment of the court below as it is.

Where part of a parcel of land has been transferred by specifying it and completed a co-ownership registration on the whole part for convenience, the registration of a trustee under mutual title trust shall be valid. If the specific part has been transferred before and the co-ownership registration has been completed accordingly, the mutual title trust relationship between the first transferor and the last transferee of the specific part shall also be established by succession to the status of mutual title trust (see, e.g., Supreme Court Decision 95Da40939, Oct. 25, 1996). Such sectionally owned co-ownership relationship can be duly established only when there is an agreement between two or more persons on the location and area of real estate by specifying the location of real estate and the area of the land subject to sectionally owned ownership, and thus, a person who claims a certain part of land by asserting a sectionally owned co-ownership relationship shall claim and prove not only the location of the relevant land subject to sectionally owned ownership

However, the following circumstances revealed by the record, namely, there is no evidence to clearly identify which part of the AH land was located before the division, and the AH land before division was divided into 11 parcel of land, including AF land on January 29, 1965. Since the person registered as a co-owner of the AH land before division was 15 persons and cannot be seen as accurately reflecting the actual ownership status of all co-owners at the time of division, the area of the land corresponding to the share in the AF land on the AF registry is 122m (37m) while the size of the land corresponding to the share in the AF land is 149m (45m). In full view of the following circumstances, it is difficult to readily conclude that the land purchased from AING is all the land purchased by specific from AFG.

Furthermore, in this case, no objective evidence, such as a sales contract, was submitted to recognize that the Plaintiff purchased the entire land AF by specifying the AF from the AJ, and the co-ownership share in the AH land register prior to the division that the Plaintiff transferred from AJ is transferred in the name of AI, and the part of the land actually occupied and used exclusively as the site of the building owned by the Plaintiff appears to be merely a part of the AF land, it is difficult to deem that the Plaintiff’s land purchased by specifying from AJ constituted the whole land AF.

Therefore, the mutual title trust relationship cannot be deemed to have been established between the Plaintiff, the remaining Defendants, and the Intervenor on the AF land.

Nevertheless, the lower court determined that the land acquired by AI from AG and finally acquired by the Plaintiff constituted the whole AF land solely for the reasons indicated in its holding. The lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, exceeding the bounds of the principle of free evaluation of evidence, misapprehending the legal doctrine on the establishment of sectionally owned co-ownership relationship, or failing to exhaust all necessary deliberations, which affected

3. Conclusion

Therefore, all appeals by Defendant Republic of Korea, F, V, X, and AA are dismissed, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. The costs of appeal by the said Defendants are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.