In the case of the partition of co-owned property in kind in the lawsuit for partition, whether the division in kind is permitted within the share limit of the person filing the partition and the remaining co-owners who do not want the partition are allowed to remain as co-ownership (affirmative)

As a lawsuit for the partition of co-owned property, the court may order the partition in a reasonable manner at its own discretion without being able to seek the co-owned property from the Plaintiff, so it is permitted to divide the co-owned property in kind within the share limit of the co-owner and allow the remaining co-owners who do not want the partition to remain as co-owned property. However, even if the co-owned property should be resolved by selling in kind or by auction or division within the share limit of the co-owner who requested the partition of co-owned property, and it is not permissible to divide the co-owned property in kind in such a way that the co-owner remains as co-owned property after resolving only the co-owned relation between the co-owner and the other party, even though the co-owned relation is not maintained between them.

Article 269 of the Civil Act

Supreme Court Decision 2014Da233428 Decided March 26, 2015 (Gong2015Sang, 627)

Plaintiff 1 and fourteen others (Attorney Lee Chang-soo, Counsel for the plaintiff-appellant)

Defendant 1 and three others

Suwon District Court Decision 2014Na2102 decided November 20, 2014

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

The grounds of appeal are examined.

1. The court shall, in principle, divide the article jointly owned in kind in the case of dividing the article jointly owned by the co-owners in exchange for the agreement between the co-owners, but if the agreement is not reached, the court shall order the auction of the article only when it is impossible to divide the article in kind or when the value of the article is significantly decreased if the article is divided in kind. Thus, barring the above circumstances, the court shall decide to divide the article jointly owned into several articles in kind in accordance with the share ratio of co-owners and to recognize the sole ownership of each co-owner for the article divided.

Meanwhile, as a lawsuit for the partition of co-owned property, the court may order partition in a reasonable manner at its own discretion without being able to seek by the plaintiff. Thus, in the case of the partition of co-owned property in kind, it shall be permitted to divide the co-owned property within the share limit of the co-owner, and the remaining co-owners who do not want the partition are allowed to leave as co-owned property. However, even if the co-owned property should be resolved by auction or division within the share limit of the co-owner who requested the partition of co-owned property, it is not permitted to divide the co-owned property in kind and recognize the sole ownership. Even though the co-owner did not want to maintain the co-owned relation, it is not permitted to divide the co-owned property in kind by resolving only the co-owned relation between the co-owner and the other party.

2. According to the records, the plaintiffs asserted in the court below that with respect to the dividing method of the land of this case desired by the defendants, i.e., the part of "B", which was 962 square meters connected with each point of the attached Form 14, 15, 16, 17, 18, 14 attached to the judgment below, the plaintiffs jointly owned by the plaintiffs, and with respect to the part "A" which was 3,848 square meters connected each point of the same map, which was 1 through 14, 18, 17, 16, 16, and 14, the defendants' joint ownership (hereinafter "the division method of this case"). Since there is a conflict of interest between the plaintiffs, the plaintiffs who filed the claim for the partition of co-owned property should also divide as a final partition resolving the co-ownership relation.

Nevertheless, under the premise that only the co-ownership relationship between the plaintiffs and the defendants is resolved and the co-ownership relationship between the same parties is permitted, the court below determined that the land in this case is reasonable to divide it in kind by the method of partition for the reasons stated in its reasoning. The court below erred by misapprehending the legal principles as to co-ownership of co-owned property, which affected the conclusion of the judgment, and the ground of appeal assigning

3. 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 Park Poe-young (Presiding Justice)