The issue of exclusive use of and benefit from part of the land owned by the co-owner

With respect to the management of co-owned property, the co-owners of the land may not use exclusively the co-owned property, unless otherwise expressly agreed by the co-owners pursuant to the main sentence of Article 265 of the Civil Act.

Article 265 of the Civil Act

Plaintiff 1 and three others

Attorney Lee Jae-won, Counsel for the defendant-appellant

Gwangju High Court Decision 76Na296 delivered on March 23, 1978

The judgment below is reversed and the case is remanded to the Gwangju High Court.

We examine the plaintiffs' grounds of appeal.

According to the reasoning of the judgment below, the court below rejected the part of the land of this case, which is jointly owned by the plaintiffs and the defendant, under the premise that no agreement has been reached with regard to the use or profit-making of the land of this case, and therefore, the use or profit-making of the land of this case cannot be processed by factual relations. As to facts, since the land of this case is owned by the defendant's sole owner ( Address 1 omitted), and the land of 4,065 is distance from the salt farm reservoir, only its use or profit-making use or profit-making as a substitute for the above land, and there is no other value. Of the land of this case, the land of this case, ( Address 3 omitted), 1,960, which is owned by the defendant's exclusive right holder, was purchased from the non-party 2, the owner of the land next to that of this case, who is the defendant's exclusive right holder, and thus, the defendant's purchase or profit-making of the land of this case, as well as the land of this case, the whole land of this case.

However, it is clear in accordance with the main sentence of Article 265 of the Civil Code that the specific method for the co-owners to use and benefit from the co-owned property is to be determined by a majority of co-owners' shares. Thus, unless there is a special agreement among co-owners under the same provision, co-owners of the land can not use and benefit from the co-owned property exclusively, even if part of the co-owned property is a min

However, in this case, even though there was no agreement between the plaintiffs and the defendant on the use and profit-making of the co-owned land of this case, the defendant, one of the co-owners of this case, is exclusively used and profit-making exclusively, and the court below found the facts established by the court below, it should be deemed that the defendant cannot be legally entitled to exclusive use and profit-making of the co-owned land of this case solely on the ground that the defendant is a co-owner only based on the facts in accordance with the reasoning of the court below.

Even though the court below rejected the plaintiffs' claim of this case on the premise that the defendant can exclusively benefit from the facts in accordance with the reasoning of the judgment, it is difficult to avoid criticism that there was a misunderstanding of the legal principles as to the management of the article jointly owned, and it is reasonable to point out that such a ploss were affected by the judgment.

Therefore, this appeal is with merit and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Il-young (Presiding Justice)