[1] The method of partition of co-owned property in litigation

[2] Whether the co-owned property can be co-owned solely or jointly owned by one of the co-owners, and as to the other co-owners, the partition of co-owned property by the method of compensating for the price (affirmative)

[1] The lawsuit for partition of co-owned property is a litigation for formation, and it refers to the resolution of co-ownership relation as to the objects of co-ownership by exchanging or selling shares among co-owners. As such, the court shall make a reasonable partition according to the co-owner's share ratio according to the co-ownership relation or the overall circumstances of the objects of co-owned property at free discretion, instead of seeking a partition of co-owned property.

[2] It is recognized that it is reasonable to acquire the pertinent jointly owned property to a specific person, comprehensively taking into account the cause of the co-ownership relationship, the ratio of co-ownership to co-ownership, the economic value of the co-ownership where the co-ownership is divided, and the wishes of co-owners for the method of division. If there are special circumstances to recognize that acquiring the price of the co-ownership to another co-owner does not impair the substantial fairness of the co-owner, the co-owner shall own the jointly owned property solely or jointly owned by one of the co-owners, but the co-owner who owns the goods in kind shall also be allowed to make a partition

[1] Article 269 of the Civil Code / [2] Article 269 of the Civil Code

[1] Supreme Court Decision 93Da27819 delivered on December 7, 1993 (Gong1994Sang, 336), Supreme Court Decision 97Da18219 delivered on September 9, 1997 (Gong1997Ha, 3057), Supreme Court Decision 2004Da10183, 10190 delivered on July 22, 2004 (Gong2004Ha, 1511)

Plaintiff (Attorney Nowon-gu et al., Counsel for the plaintiff-appellant)

Defendant

Gwangju District Court Decision 2003Na9038 delivered on May 14, 2004

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

1. Summary of the judgment of the court below

According to the reasoning of the judgment below, the court below determined that in order to issue an order to divide the land of this case and the building of this case where the plaintiff owned 21,205/21,90 of shares, the land of this case where the defendant owned 695/21,90 shares, and the land of this case constructed on the land of this case and owned 54,138/138 shares, and the land of this case where the defendant owned 1,719/56, and the building of this case where the defendant held 1,719 shares, the land of this case is the land of this case, and the building of this case is one site of this case, and since the building of this case is not recognized as independent as such, it is difficult to divide the land of this case and building of this case, and its value might be significantly reduced due to the division, and unlike the consultation division, the court below held that in order to completely exclude the sale of the land of this case and the building of this case, the co-owner only the price compensation in kind from the land of this case.

2. Judgment of the Supreme Court

The method of partition of the article jointly owned can be selected at will if there is an agreement between the co-owners, but if the article jointly owned is divided by a trial due to the failure to reach an agreement, the court shall divide it in kind in principle. If it is impossible to divide it in kind or if it is possible to divide it in kind, the value of the article can be reduced remarkably, the auction of the article can be ordered to be paid in installments.

In addition, a lawsuit for partition of co-owned property is a litigation for formation, and it means to resolve the co-ownership relation as to the objects of co-ownership by exchanging or selling shares among co-owners. Thus, the court shall make a reasonable partition according to the share ratio of co-owners depending on the co-ownership relation or the overall circumstances of the objects of co-owned property at free discretion, not by the method requested by the claimant (see, e.g., Supreme Court Decisions 93Da27819, Dec. 7, 1993; 97Da18219, Sept. 9, 197).

Therefore, in cases of dividing goods jointly owned by several persons, the area of the land acquired by each co-owner should be equal to the ratio of the co-owner's share. However, if the form or location of the jointly-owned property to be divided, and the use situation or economic value of the jointly-owned property is not equal, it is also allowed to divide the economic value in proportion to the share ratio in consideration of all the above circumstances. If certain requirements are met, it is allowed to divide the jointly-owned property by requiring the other co-owners to adjust the economic value in cash. Furthermore, it is reasonable to acquire the jointly-owned property to a specific person by comprehensively taking into account the causes of the co-ownership, the proportion of the co-owned share, the economic value of the co-owner's share, and the wishes of the co-owners to divide. If the acquisition of the share price to another co-owner is recognized as not impairing the substantial fairness of the co-owner's share, it is not allowed to order the other co-owner to divide the jointly-owned property more reasonably and reasonably, the other co-owner's price can not be paid in kind.

Nevertheless, the decision of the court below that ordered the partition of co-owned property by auction immediately because it is difficult to examine whether the partition of co-owned property by such method becomes a fair partition on the ground that it is not permitted otherwise, and it is found that the in-kind partition of the land and building in this case is difficult or that the value might be significantly reduced due to the partition, thereby affecting the conclusion of the judgment by misapprehending the legal principles as to the partition of co-owned property. The allegation in the grounds of appeal pointing this out is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)