Scope of validity of the mortgage established only on the section for exclusive use of a sectioned

According to Article 358 of the Civil Act, Articles 20(1), 20(2), and 2(6) of the Multi-Unit Residential Building Act, barring any special circumstance, such as where the owner of a section for exclusive use only established with respect to a section for exclusive use may separately dispose of the right to use the site, the effect of the mortgage on the section for exclusive use only of a sectioned building shall be to acquire the right to use the site ex post facto, and if the section for exclusive use and the right to use the site belong to the same owner, the right to use the site shall be extended to the right to use the site, and if the right to use the site belongs to the same owner, the right to use the site shall be included in the ownership in addition to the right to use the site, such right shall not be deemed to be a case where the right to use the site is established by a notarial deed, even if the right

Article 358 of the Civil Act, Article 2 subparag. 6 of the Multi-Unit Residential Building Act, and Article 20(1) and (2) of the Multi-Unitial Building Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Han-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Choi Young-young, Counsel for the plaintiff-appellant)

A sampling Credit Cooperatives (former Trade Name: A Fixed and Small Credit Cooperatives)

Jeonju District Court Decision 200Na433 delivered on October 18, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The main text of Article 358 of the Civil Act provides that "a mortgage shall be effective against mortgaged real estate and its accessory property." This provision shall also apply mutatis mutandis to subordinate rights to the mortgaged real estate. Meanwhile, Article 20 (1) of the Multi-Unit Residential Building Act provides that "a sectional owner shall not dispose of his/her right to use site separately from his/her section of exclusive ownership: Provided, That this shall not apply where otherwise prescribed by the regulations," and Article 2 subparagraph 6 of the same Act provides that "the right to use site means the right to own the site of a building in order to own the section of exclusive ownership." Thus, the effect of a mortgage established on only the section of exclusive ownership of a sectioned building shall be construed as "the right to use site" if the owner of the section of exclusive ownership acquired the right to use site after the acquisition of the right to use site, and if the right to use site comes to belong to the same owner, it shall be interpreted that the right to use site shall not be separated from the right to use site, and it shall be interpreted that the right to use site shall not be registered ex officio.

Examining the reasoning of the first instance judgment cited by the lower judgment in light of the records, the lower court’s judgment that the effect of the right to collateral security established only on the part of exclusive ownership among the instant real property owned by the Nonparty extends to the right to site by registering the right to site, is consistent with the aforementioned legal principles, and there is no error of law such as misunderstanding of legal principles or incomplete deliberation as alleged.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)