The case holding that if a store in a large complex can specify the spatial scope of ownership based on the ground plan, plot plan, etc. attached to the building register and the building ledger, the object of auction may be deemed an object of auction even if it does not meet the requirements for sectional ownership under the Act on Ownership and Management of Condominium Buildings.

The case holding that if a store in a large complex building can specify the spatial location and size of the ownership based on the ground plan or plot attached to the building register and the building ledger, etc., the object of auction may be considered as an object of auction even if it does not meet the requirements that can be subject to sectional ownership under the Act on the Ownership and Management of Aggregate Buildings because the floor boundary mark and the lake are not installed, walls, building number signs, etc.

Articles 80 and 81 of the Civil Execution Act, and Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings

Sung-sung Co., Ltd. (Law Firm Sejong, Attorneys Cho Jong-tae et al., Counsel for the defendant-appellant)

Incheon District Court Order 2008Ma429 dated February 28, 2008

The order of the court below is revoked.

1. Basic facts

The record reveals the following facts:

A. On January 25, 2008, the appellant, the mortgagee of the right to collateral security, applied for a voluntary auction with respect to 340 stores located in Gyeyang-dong, Incheon, Gyeyang-dong, 67, which are owned by the debtor peace industry corporation (hereinafter “each of the instant stores”), and received a decision to commence the auction of real estate under the lower court’s order around 2007ta and around 75350.

B. On February 1, 2008, while the above auction procedure was in progress, the peace industry filed an objection against the order to commence the above auction on February 1, 2008, with the lower court No. 2008Ma429, and on February 28, 2008, the lower court accepted the above application and decided to revoke the above order to commence the auction and dismiss the application for auction of this case on the grounds that it is difficult to view that each shop of this case has structural independence and functional independence to determine the scope of exclusive control over sectional ownership.

2. Summary of grounds for appeal;

On the ground that the order of the court below is inconsistent with the reality of transaction and is not consistent with the purpose of amendment of the Act on the Ownership and Management of Aggregate Buildings, it is possible to supplement the boundary identification mark, the stability of transaction and the rights of the interested parties should be protected, and it is inconsistent with the judgment of the existing court on the same issue.

3. Determination

A. In the process of a change in the legislation and precedents on the partitioned building, although the requirements or management of the partitioned building through the content of registration or the building management ledger are embodied and subdivided, it is not possible to refuse auction despite the fact that actual transactions have been conducted on the grounds that it does not meet the requirements for ex post facto legislation or change of judicial precedents. Meanwhile, in the case of a large-scale complex building in Korea where a small-scale store is located, each shop cannot be required to be equipped with the facilities such as toilets or sugar rooms, which are distinguishable from the neighboring one due to the characteristics of its use. Rather, each shop cannot be required to be separated from the neighboring one, or to be equipped with the facilities such as toilets or kitchens rooms, which are distinguishable from the neighboring one. Rather, a building management ledger is prepared in the form of a partitioned building without being divided into walls, and its location and size are determined by the current status or plot of buildings on the aggregate building ledger, and have been determined by the current status or plot of buildings on the aggregate building ledger, and have been registered, and such transaction quality has also been used or reflected in each transaction management ledger.

According to the records, in the case of each of the stores of this case, the location of each of the stores of this case is specified on the basis of the floor plan or arrangement plan attached to the building register and the building register, and thus, it seems easy to install the boundary identification mark through the survey. Based on these circumstances, each of the stores of this case has been traded independently. In light of the above circumstances, even if each of the stores of this case does not have the floor boundary mark and the building number mark, it is deemed that there is no obstacle to the transaction by specifying each registered store as the object of the transaction, even if there is no partitions or wall between the floor boundary mark and the number of units.

B. In addition, since the subject matter of the auction in this case is obviously real estate, the real estate register is required to be sold by means of real estate auction, while real estate register is required as evidence to determine the scope of the subject matter of the auction in this case and to determine who is its owner. In this case, it is obvious that the debtor and owner are the owner of the subject matter of the auction in this case, and the location and size of each store are specified based on the floor plan or arrangement plan attached to the building register and the building ledger. Thus, there is no obstacle to proceeding with the sale

C. In addition, the registration contents can be changed from the sectional ownership to the unit ownership in order to comply with the registration contents under the current Registration of Real Estate Act, or to comply with the current status of the building, and as long as the debtor and the owner intend to stop the progress of auction without taking such measures, if it is difficult to determine the scope of ownership of the store subject to auction of this case, the auction court would take proper measures to ensure that the purchaser would comply with the current status and contents of the building by selling the entire store to the same purchaser by collectively selling the same unit without individually selling the entire store, and taking such measures as above.

D. Even if the requirements under Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings were not satisfied due to structural independence, the owners of each shop of this case are judged not to be a simple co-ownership relationship, but to be at least a sectionally owned co-ownership relationship. Thus, even if the auction procedure is in progress with respect to each shop of this case, it is not likely to result in infringing on the interests of interested parties beyond the substantive legal relationship. If the cancellation of the decision to commence the auction of this case and the request for auction is dismissed, it is anticipated that the legal stability would be significantly harmed and the damage would be actually caused to the interested parties. In light of the fact that various proposals auction have already been conducted for other stores within each shop of this case, it is difficult to accept as a result excessively inconsistent with the principle of equity.

E. Furthermore, the debtor who intends to stop the auction of the auction object of this case, registered the building of this case as it is and provided as security, uses the current status as it is, and uses it as the object of transaction. If each shop cannot be the object of partitioned ownership for the same reason as the debtor's assertion, the current status of each shop should be consistent with the registered contents by installing a wall that enables each shop to be separated in the registration status as the debtor and the debtor to meet the registration status, so the security value should be maintained. However, according to the records, the debtor raised an objection against the auction commencement order of this case as to the auction of this case commenced in 2003 on the ground that there is no structural independence and function independence as to the auction commencement order of this case, and again prevented the auction until the request for auction auction of this case was made, it did not take any measures to supplement the functional independence, and the appellant did not again perform his/her duty again and did not perform his/her duty, thereby preventing the auction of this case from exercising his/her duty under the good faith principle.

4. Conclusion

Therefore, the order of the court below is unfair, and it is so decided as per Disposition by cancelling it.

Judges Lee Jae-soo (Presiding Judge)