[1] Requirements for establishing a sectional co-ownership relationship

[2] The case holding that where the forest land before partition is divided into three lots, and the creation of superficies has been registered in order to secure a claim against one of the co-owners of the forest land before partition, and a co-ownership certificate was prepared to supplement the registration of creation of superficies, it cannot be deemed that co-owners have agreed to establish a sectionally owned co-ownership relationship among the co-owners

[1] The sectional co-ownership relationship is legally established only when there is an agreement by which many persons agree to specify the location and area of a parcel of land and to divide the co-owners into sectional ownership. Even if co-owners agreed to divide the jointly-owned property and have occupied and used each part by specifying the sectional ownership from that time, the sectional co-ownership relationship may be established. However, if co-owners do not agree to allocate a specific part to each co-owner exclusively, there is no room to establish such relationship.

[2] The case holding that the co-owners cannot be deemed to have agreed to establish a sectionally owned co-ownership relationship, in case where the creation of superficies has been registered in order to secure a claim against one of the co-owners of the forest land before partitioned into three lots, and a co-ownership certificate was prepared to supplement the registration of creation of superficies

[1] Article 268 (1) of the Civil Code / [2] Article 268 (1) of the Civil Code

[1] Supreme Court Decision 96Da56139 delivered on March 28, 1997 (Gong1997Ha, 1215) Supreme Court Decision 2004Da39412 Delivered on October 28, 2004

Plaintiff

Defendant 1 and one other

Incheon District Court Decision 2004Na5112 delivered on November 12, 2004

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

On June 30, 192, the court below held that the co-ownership relation between the plaintiff, the non-party, and the defendants, etc., who were co-owners of the above land before the division, was converted into the sectionally owned co-ownership relation as follows: (i) the land in this case; (ii) the land in this case was converted into the sectionally owned co-ownership relation with the defendants' possession of the land in this case; (iii) the land in this case; and (iv) the land in this case was legally owned by the plaintiff, the non-party, and the defendants, and (iv) the defendants were converted into the sectionally owned co-ownership relation with the land in this case as of June 30, 1992, and (iv) the land in this case which was legally owned by the plaintiff as of June 6, 1992.

However, this measure by the court below is not acceptable for the following reasons.

A sectionally owned co-ownership relationship can be legally established only when there is an agreement for specifying the location and area of a parcel of land and for many persons to divide the jointly owned property. Even if co-owners agreed to divide the jointly owned property and have occupied and used each part by specifying the sectionally owned part from that time, the sectionally owned co-ownership relationship can be established. However, if co-owners did not reach an agreement for the intention to exclusively vest a specific part among the co-owners, there is no room to establish such relationship.

According to the records, as evidence that it seems that the above woodland was established as sectionally owned co-ownership relation as stated in the judgment of the court below before and after the time when the above woodland was divided into three parcels as above, it is difficult to believe that the above woodland Nos. 2-2 (Certified Copy of closed register) and Nos. 3 (No. 3) and only the result of the plaintiff himself examination at the court below. However, as the result of the plaintiff self-examination which is merely a unilateral statement of the party concerned, it is difficult to believe that the plaintiff himself was merely the witness testimony at the court below. According to the evidence No. 2-2, it is difficult to conclude that the registration of creation of superficies was completed on June 30, 192 (No. 2 omitted) in the name of the non-party 1 agricultural cooperative (hereinafter referred to as "Seoul"), which was divided into three parcels, for the purpose of securing the value of the non-party's co-ownership share as to the above divided land No. 9, which was already prepared on May 7, 1992).

However, the court below did not err in the misapprehension of legal principles as to the requirements for establishing a sectionally owned co-ownership relationship or in violation of the rules of evidence that affected the conclusion of the judgment, on the sole basis of the facts stated in its reasoning that the court below concluded that a sectionally owned co-ownership relation with the land of this case was legally established between the plaintiff and the defendants before and after the time when the above land was immediately divided into three lots.

Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)