[1] In a case where a seller of an aggregate building transfers the ownership of a section for exclusive use to a sectional owner, and the site is registered for the transfer of ownership only for a part of the share and leaves the remainder of the share in his/her name, whether the buyer or transferee of the share can claim the co-ownership right of the site against the sectional owner

[2] Whether the number of buyers who paid the sale price in full but failed to complete the registration of ownership transfer due to the reasons on the part of the buyer can be deemed as equivalent to the "sectional owner" under Article 20 of the former Act on the Ownership and Management of Aggregate Buildings (affirmative); and in the case where multiple sectional owners or other persons corresponding thereto exist, the method for disposing of the right to use the site separately from the section of exclusive ownership and the right to use the site (=laws) / Whether a separate disposition of the right to use the site is allowed by

[1] After a site ownership is established for the entire site of an aggregate building, the right to use the site cannot be disposed of separately from the section for exclusive use unless otherwise stipulated by the regulations (Article 20 of the Act on the Ownership and Management of Aggregate Buildings). If the seller of an aggregate building transfers all of the sectional owners the ownership of the section for exclusive use while the seller of an aggregate building transfers the ownership to the sectional owners, and the remainder of the ownership is left under his/her name, the seller or the transferee of the ownership is entitled to claim a co-ownership right against the sectional owners, special circumstances, such as where the sectional owner or the transferee of the ownership owns the section for exclusive use and the right

[2] Article 20(2) proviso of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter “former Act”) permits a separate disposition of section for exclusive use and right to use site if the regulations enacted by multiple sectional owners separately prescribe the section for exclusive use and right to use site (proviso of Article 20(2)). Even before multiple sectional owners exist, a person who owns the whole section for exclusive use of an aggregate building can dispose of the section for exclusive use and right to use site by a notarial deed (Article 20(4) and Article 3(3) of the former Act). Here, a sectional owner generally refers to a person who acquires sectional ownership (registered as a sectional owner). However, if there are special circumstances such as where the ownership transfer registration was not completed due to the reasons on the part of the purchaser after full payment of the price as the sectional owner, it shall be deemed that such a person is equivalent to a sectional owner. Therefore, if there are sectional owners equivalent thereto, the right to use and right can be separately determined by the Act.

[1] Article 20 of the Act on the Ownership and Management of Aggregate Buildings / [2] Articles 3(3), 20(2), and 20(4) of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 2010)

[1] Supreme Court Decision 2013Da33577 Decided November 14, 2013 (Gong2013Ha, 2210), Supreme Court Decision 2018Da219727 Decided December 28, 2018 (Gong2019Sang, 381) / [2] Supreme Court Order 2004Ma515 Decided December 16, 2005 (Gong2005Sang, 219)

Plaintiff 1, et al., Counsel for the plaintiff-appellant of the deceased non-party

Sungnam-si

See attached list of the Defendant (Law Firm LLC, Attorneys Song-yeong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2014Na2024547 decided August 2, 2016

All appeals are dismissed. The costs of appeal are assessed against the Intervenor, and the remainder are assessed against the Plaintiffs.

The grounds of appeal are examined.

1. As to the assertion on the benefit of confirmation

A. Even in a case of filing a lawsuit for payment based on ownership, in a case where there is an immediate interest in the confirmation of ownership due to a dispute between the parties as to the existence of the basic ownership itself, a lawsuit for confirmation of ownership may also be filed (see Supreme Court Decisions 65Da2157, Jan. 31, 1966; 71Da519, May 24, 197, etc.).

B. On the premise that the Plaintiffs are the owners of the share in the instant dispute, the lower court determined that there was no benefit in the lawsuit seeking confirmation of ownership of the share in the instant dispute, as long as the Plaintiffs are directly demanding the Defendants to seek unjust enrichment or damages equivalent to the rental fees.

C. However, it is apparent that the Defendants’ disposal of the dispute shares in this case, which are the object of the right to use site, separately from the sections of exclusive ownership of each of the instant sections, is null and void. Thus, according to the aforementioned legal principles, the Plaintiffs should be deemed to have the interest in the lawsuit seeking confirmation of ownership of the dispute shares in this case, which are the basic relation of rights, along with filing a lawsuit against the Defendants for the performance of this case.

D. Nevertheless, the lower court determined otherwise on the grounds indicated in its reasoning that there was no interest in the Plaintiffs in the lawsuit seeking confirmation of ownership of the instant dispute shares. In so doing, the lower court erred by misapprehending the legal doctrine on the interest in the lawsuit in the lawsuit for confirmation. However, as seen earlier on March 3, 200, the Plaintiffs’ registration of ownership transfer on the dispute shares in this case is null and void, and thus, the Plaintiffs’ claim for confirmation of ownership against the dispute shares in this case should be dismissed as it is without merit, but only the Plaintiffs appealed the lower judgment in the instant case, which was appealed, and cannot be sentenced to a more unfavorable judgment against the Plaintiffs. Accordingly, the lower court’s

2. As to the assertion regarding the establishment of sectional ownership and the scope of right to use site

For the reasons indicated in its reasoning, the lower court determined that the right to use the site for the entire site of this case was established on January 9, 1996, since it is reasonable to view that the building of this case was an aggregate building of the building of this case and the sectional ownership of the building of this case was established as an aggregate building of this case, and that the member development company, which is the owner of the building of this case, (hereinafter referred to as the “large Development”) had an intention to establish the right to use the site for the entire site of this case including the share

In light of the relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine or by misapprehending the facts against the rules of evidence, failing to exhaust all necessary deliberations, omitting judgment, or failing to exhaust all necessary deliberations.

3. As to the assertion on the validity of the disposition of separation of shares in the dispute of this case

A. 1) After a site ownership is established for the entire site of an aggregate building, the right to use the site cannot be disposed of separately from the section for exclusive use unless otherwise stipulated by the regulations (Article 20 of the Act on the Ownership and Management of Aggregate Buildings). If a seller of an aggregate building transfers all sections for exclusive use to sectional owners, but the site is left in his/her name after the registration of ownership transfer only a partial share is transferred to the sectional owners, and the remaining shares are left in his/her name, special circumstances exist, such as that the seller or transferee of the ownership who acquired such share can claim a co-ownership right against the sectional owners who acquired such share (see, e.g., Supreme Court Decisions 2013Da3577, Nov. 14, 2013; 2018Da219727, Dec. 28, 2018).

2) The former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter “former Act”) permits separate disposal of section for exclusive use and right to use site if the regulations enacted by multiple sectional owners otherwise (proviso of Article 20(2)). Even before multiple sectional owners exist, a person who owns the whole section for exclusive use of an aggregate building can dispose of the section for exclusive use and right to use site separately by a notarial deed (Article 20(4) and Article 3(3)). Here, a sectional owner generally refers to a person who has acquired sectional ownership (registered as a sectional owner under the register). However, if special circumstances exist, such as where a registration of ownership transfer was not completed due to the reasons on the part of the purchaser in full payment of the purchase price, it shall be deemed that the purchaser is equivalent to the former Act on the Ownership and Management of Aggregate Buildings (see Supreme Court Order 200Da2514, Dec. 16, 2005).

B. According to the reasoning of the judgment below, the following facts are revealed: (a) the development of members, while constructing the instant building which is an aggregate building on the instant site, completed the instant building on the ground of the instant site around January 9, 1996 when entering into a sales contract with the buyer from June 194; (b) the development of members, at the time of completion of the instant building, was fully paid from some buyers; and (c) the partial buyers, from February 1996, began to conduct business after delivery of each section of exclusive ownership from the development of members; and (c) the development of members, from February 1997, completed the registration of ownership transfer for each of the instant sectional buildings to the buyer from February 9, 199 to the buyer.

C. Examining the above facts in light of the legal principles as seen earlier, if the development of the members transferred the ownership of each of the instant partitioned buildings to the sectional owners, and registered the reservation of the shares in the title, a notarial deed which permits the separate disposal of the shares in the dispute between the section for exclusive use and the instant section for exclusive use, is deemed to have been submitted. At the time, some buyers already paid the sale price in full and used the pertinent section for delivery, but the registration of ownership transfer was not completed due to the development of the members. In this case, the development of the members can determine the separate disposal of the instant dispute solely based on the rules established with the number of buyers corresponding to the sectional owners pursuant to the proviso of Article 20(2) of the former Aggregate Buildings Act, and it cannot be determined with the notarial deed prepared independently by the development of the members.

Therefore, even though the right to use the site was established on the dispute of this case, if there is no agreement to separately dispose of the right to use the site with the section for exclusive use of each of the sections for exclusive use in this case, the act of disposing of the dispute of this case separately from the section for exclusive use in a notarial deed prepared by members development alone is null and void against Article 20 (2) of the former Aggregate Buildings Act. Thus, even if the plaintiffs acquired the ownership of the dispute of this case through the public sale procedure of this case,

D. Although the reasoning of the court below is somewhat inappropriate, the court below's determination that the development of members, by means of a notarial deed, separately disposed of the shares in the dispute of this case from the section for exclusive use, is justified as it is against Article 20 (2) of the former Aggregate Buildings Act. In so doing, the court below did not err by misapprehending the legal principles on the separation of the section for exclusive use and the right to use site under the former

4. As to the assertion regarding "a bona fide third party" under Article 20 (3) of the former Aggregate Buildings Act

For reasons indicated in its reasoning, the lower court determined that the Plaintiffs did not constitute a bona fide third party under Article 20(3) of the former Aggregate Buildings Act, on the grounds that it is reasonable to view that the Plaintiffs were well aware that the instant dispute was part of the land of the instant building, which is an aggregate building, through the public auction notification and the copy of the register

In light of relevant legal principles and evidence duly adopted, the lower judgment did not err by misapprehending the legal doctrine on good faith as stipulated in Article 20(3) of the former Aggregate Buildings Act, thereby adversely affecting the conclusion of the judgment.

5. As to the assertion on the acquisition by prescription on the registry

For the reasons indicated in its holding, the lower court determined that the Plaintiffs did not have any share that the Plaintiffs could acquire by prescription among the shares in the instant dispute.

In light of the relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the acquisition of prescription on the register, thereby adversely affecting the judgment.

6. As to the assertion on the good faith principle, the principle of no-competence, and the principle of no-performance

The lower court determined that the Defendants’ assertion either contravenes the principle of good faith and the principle of no advice, or does not apply to the Defendants’ assertion.

In light of the relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine as alleged in the grounds of appeal, thereby adversely affecting the judgment.

7. Conclusion

Therefore, all appeals are 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.

[Attachment] List of Defendants: omitted

Justices Kim Seon-soo (Presiding Justice)