[1] Whether a minority right holder of the article jointly owned may demand delivery of the article jointly owned as an act of preservation of the article jointly owned by another minority right holder who exclusively occupies the article jointly owned without consultation with other co-owners (affirmative)

[2] In a case where Gap et al., a minority equity right holder of public land owned a building on the ground under a land lease contract with other minority equity right holders, and sought a removal from each occupied part against Byung et al., who occupied and used the building exclusively by leasing and using the building from the corporation Eul et al., the case holding that Gap et al. may seek removal of the building and delivery of the land as an act of preserving the jointly-owned property against Eul et al., and that Byung et al may seek removal from each occupied part

[1] Article 265 of the Civil Code / [2] Article 265 of the Civil Code

[1] Supreme Court en banc Decision 93Da9392, 9408 delivered on March 22, 1994 (Gong1994Sang, 1297)

Plaintiff 1 and four others (Law Firm Barun, Attorneys Park Woo-young et al., Counsel for the plaintiff-appellant)

Defendant (Bae, Kim & Lee LLC, Attorneys Lee Dong-chul et al., Counsel for the defendant-appellant)

Busan High Court Decision 201Na5646 decided May 1, 2012

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

The grounds of appeal are examined.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below rejected the claim of this case against the defendant (appointed party) and the remaining designated parties (hereinafter "the defendant et al.") who leased each of the buildings of this case to the Korea Production Business Co., Ltd. (hereinafter "Korea Production Business"), which exclusively occupied and used the land of this case by owning each of the buildings of this case under a lease agreement with other minority right holders on the land of this case and owned each of the buildings of this case under the lease agreement on the land of this case. The court below rejected the claim of this case as follows.

The claim of this case is an act of preserving the article jointly owned under the premise that the removal of each of the buildings of this case against the Chinese-style industry is sought, and the removal of each of the buildings of this case not only conflicts with the understanding and face of other minority right holders who have entered into a land lease contract with the Korean-style manufacturing industry, but also is irrelevant to the loss or damage of the land of this case, and thus, it cannot

In addition, Article 263 of the Civil Act provides that co-owners may use and benefit from all the co-owned property at the ratio of shares. Thus, even if a minority right holder exclusively occupies, uses and benefits from all or part of the co-owned property without consultation with other co-owners, it is different from the case where he/she illegally occupies it within the scope of his/her share, and at least there is a third party who has obtained approval for the possession and use of the jointly owned property from a minority right holder, and it shall not be different from the case where he/she owns it within the scope of his/her share. However, it shall be deemed that he/she illegally occupies the jointly owned property only within the extent exceeding the ratio of his/her share. Accordingly, allowing a minority right holder to remove the building and request a third party who has obtained approval for the occupancy and use of the jointly owned property from a minority right holder to transfer all the jointly owned property to him/her, it is ultimately deprived of his/her right to use and benefit from the building within the scope of share, and thus, the plaintiffs are not entitled to seek possession and use of each part of the land of this case.

2. Judgment of the Supreme Court

A. Even if a co-owner who owns shares in the land or a building or a person who has a right to claim the registration of transfer of ownership for such shares is unable to exclusively possess, use, and benefit from the co-owned property without consultation with other co-owners. Thus, even if shares owned by him fall short of the majority of the co-owners, other co-owners may request the person who possesses the jointly owned property to deliver the jointly owned property as an act of preservation of the jointly owned property (Supreme Court en banc Decision 93Da9392, 9408 delivered on March 22, 1994).

B. Examining the facts established by the court below in light of the above legal principles, the plaintiffs, who are minority right holders with respect to the land of this case, may seek removal of each of the buildings of this case and delivery of the land of this case against the Korea Production Business, which owned each of the buildings of this case on the land of this case and exclusively occupies and uses the land of this case under the land lease contract with the other minority right holders, and can seek removal of each of the buildings of this case and the defendant, etc. who occupied and used each of the buildings of this case. Accordingly, they can seek removal from each of the occupied parts against the defendant, etc. who occupied and used each of the

C. Nevertheless, the lower court rejected the Plaintiffs’ claim in this case by deeming that a minority equity right holder of the jointly owned property cannot seek delivery of the jointly owned property as an act of preservation against other minority equity right holders, etc. who possess the jointly owned property exclusively without consultation with other co-owners. In so doing, the lower court erred by misapprehending the legal doctrine as to the claim for delivery of the jointly owned property as an act of preservation by a minority equity right holder, thereby adversely affecting the conclusion of the judgment. The allegation contained in

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

[Attachment] List of Appointeds: Omitted

Justices Jo Hee-de (Presiding Justice)