209Na26178 Co-owned property partition

1. Kim○-○

Busan ○○-gu ○○ Dong 0

2. Lighting. ○○

Seoul ○○-gu ○○○ ○○

3. Kim○-○

Seoul OOO-gu Odong ○ ○

4. Scrap;

Seoul ○○-gu ○○ Dong

5. Yellow dust ○○;

Seoul ○○-gu ○○○ ○○

6. Newly operated ○;

Seoul ○○-gu ○○ Dong

Seoul ○○-gu ○○○ Dong 00

The action by the plaintiff 1 through 5, the plaintiff 1 and the plaintiff 1 and the successor ○○, and the successor ○○

Attorney Song-chul et al.

1. Han ○○

Seoul ○○-gu ○○○ ○○

2. Stambed ○.

Seoul ○○-gu ○○○ ○○

3. Title ○○.

Seoul ○○-gu ○○○ ○○

4. Title ○○.

OO O O ○ ○○ ○○

5. Salt ○○;

Seoul ○○-gu ○○ Dong 0

Defendant 1, 2, 4, and 5 Law Firm GREN

Attorney Cho Tae-cheon

Seoul Eastern District Court Decision 2008Gahap15146 Decided January 22, 2009

May 26, 2010

July 7, 2010

1. Revocation of a judgment of the first instance;

2. The plaintiffs' claims and the claims filed by the plaintiff 1, 1, 2, and 1, 200 are dismissed, respectively.

3. The plaintiffs and the defendants bear the costs of lawsuit between the plaintiffs, the plaintiff 1, the plaintiff 1, the succeeding intervenor and the defendants, respectively.

1. Purport of claim

Plaintiff: money sold to an auction for each real estate listed in the separate sheet and deducted the auction expenses from the proceeds thereof.

16/218, Plaintiff 16/218, respectively, to Plaintiff Kim○-○, Cho○-○, Kim○-○, High-○, Yellow ○, and New ○○.

To ○○, 31/218, to ○○○, 30/218, to ○○, and to ○○, 16/218, to 218, and to ○○;

It shall be distributed to ○○ and ○○ in proportion to 15/218, respectively.

The Intervenor who succeeded to YOO and YOO: The price for each real estate listed in the separate sheet shall be sold to auction.

The remainder after deducting auction costs from the court below shall be individually against the plaintiff Kim ○, Cho ○, Kim ○, and Go ○○.

16/218/218, 31/218, 32/218, 218, 32/218, 218, 218, etc., on the part of the intervenors who succeeded to the Plaintiff Kim○.

30/218, 16/218, 218, 30, 16/218, 30, 40, 40, 300, and 40, respectively, to 30,000

15/218 shall be distributed in each proportion to 218.

2. Purport of appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

1. Basic facts

가. 원고 김○○, 조○○, 김○○, 고○○, 피고 한○○, 박○○, 권○○ 및 소외 정으 ○ ( 정○○이 2001. 5. 10. 정○○로부터 그 공유지분을 협의분할에 의하여 상속받은 후, 2008. 5. 2. 원고 신○○에게 매도하였다 ), 배○○ ( 김○○이 2002. 6. 24. 배○○의 공유지분을 낙찰받은 후, 2002. 8. 20. 이○○에게 위 공유지분을 매도하였고, 이이 ○은 2005. 12. 31. 피고 권○○, 염○○에게 위 공유지분 중 1 / 2씩을 매도하였다 ), 오○○ ( 원고 김○○이 2008. 7. 22. 오○○으로부터 그 공유지분을 매수하였다 ), 나○○ ( 원고 김○○이 2008. 7. 22. 나○○으로부터 그 공유지분을 매수하였다 ), 이OO ( 원고 황○○가 2002. 7. 4. 이○○로부터 그 공유지분을 증여받았다 ) 는 분할 전 서울 ○ ○구 ○○동 ○○ ( 2005. 11. 경 별지 목록 기재 각 부동산으로 분할되었다, 별지 목록 기재 각 부동산을 이하 ' 이 사건 토지 ' 라 한다 ) 를 공유하면서 그 지상의 □□연립주택에 각 거주하던 자들로서, 1999. 10. 경 위 □□연립주택을 철거한 후 이 사건 토지 및 서울 ○○구 ○○동 ○○ 지상에 아파트 1동 ( 대지면적 538m² ) 과 상가 1동 ( 대지면적 250m ) 을 신축하는 재건축사업을 추진하기로 합의하고, 그 재건축공사 ( 이하 ' 이 사건 재건축공사 ' 라 한다 ) 에 관하여 2000. 2. 경 주식회사 ◆◆과 사이에 도급계약을 체결하였다 .

나. 그 후 원고 등은 주식회사 ◆◆과 사이에서 분쟁이 발생하여 위 도급계약이 해 제되자, 2001. 2. 초순경 AN 주식회사를 새로운 시공사로 선정하기로 하여 정○○ , 피고 한○○이 본인 겸 건축주인 나머지 공유자들의 대리인으로서 2001. 2. 3. Ad 주식회사와 사이에 이 사건 재건축 공사에 관한 가계약을 체결하였으나, 본계약의 체결은 이루어지지 아니하였다 .

C. On May 25, 2001, with the consent of the remaining co-owners except the Ma○○ and Defendant’s right ○○○, Defendant Han-dong concluded a contract for the reconstruction of the instant reconstruction work with the designated construction cost of KRW 1,794,650,00, and the construction period of KRW 10,000 from June 10, 2001 to May 31, 2002, upon entering into a contract for the construction work under a special agreement, Defendant Han-dong Co., Ltd provided four households (one household with 6th and 5th generation) out of the pre-story and apartment site in relation to the payment of the construction cost as a special agreement, and agreed to pay KRW 34,400,000 for each household (the share of residents 12 households) as a contribution (the said contract for reconstruction is submitted to Nonparty 31, 201).

D. Until October 2002, the date of completion under the above contract does not reach an ordinary level to lower the construction progress rate, and since 2003, the reconstruction work of this case was suspended since 2003. The owner of the building of this case (hereinafter referred to as "the owner of the building of this case") entered into a contract again with the ○○○○, Cho○, Kim○, Kim○, Kim○, Kim○, Ko○, Hwang○, Defendant, ○○, Park○, ○○, ○○, ○○, ○○, and Ma○, ○○, and NaoO (hereinafter referred to as "the contract of this case") and paid the remainder of the construction cost to the owner of this case as the construction cost of the building of this case (hereinafter referred to as "the contract of this case") on November 4, 2004 (hereinafter referred to as "○○, 000, 0000, ○○, and ○○○, and ○○, and ○○, and 700.

E. On the instant land, the building was constructed on one unit of six-story apartment building (hereinafter referred to as the “instant apartment building”) and five-story commercial buildings (hereinafter referred to as the “instant commercial building”). At the time of the completion of the instant apartment building, the building owner decided to divide the ownership of the remaining 14 households except the four households that had decided to pay in kind in the instant contract among the instant apartment buildings at the time of the completion of the construction of the apartment building. Accordingly, by drawing lots around June 2004, the apartment building was occupied and used or leased by the Plaintiffs and Defendant only, ○○, ○○○○, and ○○○, etc. according to the above lot. Moreover, the building owner registered the ownership of some households of the instant commercial building and the instant apartment.

F. Meanwhile, with respect to the instant land, the Plaintiffs and the Defendants filed for registration of ownership transfer at each ratio listed in paragraph (1) of the attached list of co-ownership shares in the future. However, the Plaintiff and the Plaintiff and the Intervenor succeeding to Y○○ and New○○ (hereinafter referred to as the “Succession Intervenor”) filed for registration of ownership transfer on the instant land when they were transferred their co-ownership from the Plaintiff Y○ and New○, while the instant lawsuit was pending, and then filed for registration of ownership transfer.

[Ground of recognition] Evidence No. 1-1, 2, Evidence No. 2, Evidence No. 3-1, 2, Evidence No. 1-3, Evidence No. 1-2, Evidence No. 2-1, 2-2, and the purport of the whole pleadings

2. Determination on Defendant ○○○○’s assertion

Defendant ○○ asserts to the effect that the instant lawsuit is unlawful due to the lack of standing as a party, by withdrawing the instant lawsuit by the Plaintiff, one of the Plaintiffs.

In this case, the lawsuit for partition of co-litigation is an essential co-litigation in which the co-owner who claims partition becomes the plaintiff and the other co-owners become the co-defendant, and in the case of an essential co-litigation, even one of them does not meet the requirements for the lawsuit, if all the co-litigants who take the lawsuit in the case of an essential co-litigation do not take effect unless all the co-litigants jointly do so, and it is obvious in the record that the withdrawal of the lawsuit was submitted on May 7, 2009. However, unless all the plaintiffs did not jointly take effect, the above argument by the defendant ○○○○ on the premise that the withdrawal of the lawsuit by the plaintiff Da○○ is valid is not reasonable.

3. Judgment on the assertion by the plaintiffs and the successor intervenors

A. (1) The plaintiffs, successors, and defendants jointly own the land of this case in proportion to the shares listed in the separate sheet of co-ownership. The plaintiffs, successors, and defendants asserted that (2) as to the division of the land of this case, there is no agreement as to the division of the land of this case, and thus, they seek the division of the land in the way of payment. (2) The defendants asserted that the defendants who divided the apartment of this case on the land of this case as the defendants who divided the apartment of this case on the land of this case, lose the source of land right for building existence, and thus, they claim

B. The judgment of the court below (1) Article 8 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Act on the Ownership and Management of Aggregate Buildings") provides that "if one building which is the object of sectional ownership exists in a site, co-owner of the site shall not claim a partition of the site within the extent necessary for the use of the building." The legislative purport of the Act is to secure the existence of an aggregate building which is the object of independent sectional ownership as a single building, in which individual constituent parts are the object of independent sectional ownership. The site of an aggregate building is integrated or indivisible with the sectional ownership of the land, and if the co-ownership based on co-ownership is recognized as divided ownership such as a common co-ownership, the relation of the use of the site of the aggregate building would result in failure, and thus, it is prohibited to claim a partition for the protection of communal ownership relationship.

In determining whether a co-owner of a site of an aggregate building falls under a "site within the scope necessary for the use of a building" under Article 8 of the Aggregate Buildings Act, the legislative purport of the above Article 8 should first be considered. Furthermore, the definition of the site of an aggregate building under the Aggregate Buildings Act (see Article 2 subparagraph 5, Article 3 (3), and Article 4 of the same Act), the part of a claim for subdivision, and the mutual relation between the entire site and the whole site can be considered as an organic relation. Meanwhile, with regard to the concept of "use of a building", the following should be considered as a whole: (a) the current status at the time of the request for subdivision of an aggregate building and the entire site; (b) the past and anticipated mutual relation between the users of an aggregate building and the divided land and the remaining parts of the building; (c) the impact of the division on the whole site or the whole land on the economic value in the future; (d) whether the division affects the use of the building site or the entire land, the area of the divided land and its physical utility value; (e.

27. (See Supreme Court Decision 2005Da66374, 66381 delivered on December 27, 200). (2) With respect to this case, the registration of ownership transfer has been completed in proportion to each of the items listed in paragraph (2) of the list of co-ownership in the separate sheet as to the land of this case, and the land of this case by Plaintiffs Kim○○, Cho○○, Kim Jong-○, Kim Jong-○, Kim Jong-○, the succeeding intervenor, and the Defendants' future co-ownership; the plaintiffs and Defendant Han○, Han-○, ○○, and Ma○○○, etc., divided ownership of each of the parts that become the object of independent ownership because the apartment of this case was divided into the structure of the apartment of this case; and 'the site of the building' shall be deemed to include all of the land of this case where the apartment of this case is located (see Supreme Court Decision 2002Da16965 delivered on December 27, 2002).

Although it is argued that the legislative purport of the Aggregate Buildings Act is to secure the foundation for the existence of an aggregate building, in light of the fact that the legislative purpose of the Aggregate Buildings Act is to secure the foundation for the existence of an aggregate building, it includes not only the building already approved but also the building subject to approval for the future use. Therefore, there is no evidence to acknowledge that the apartment of this case is an illegal building to be removed, and it is not accepted).

Therefore, the plaintiffs and the successor intervenor cannot file a claim for the partition of the land of this case ( even if some of the co-ownership of the land of this case was transferred due to sale, inheritance, gift, or auction, even if some of co-owners of the land of this case do not own the apartment of this case, the necessity to secure the existence of an aggregate building for other co-owners of the land of this case is the same. Thus, the above circumstance alone cannot be viewed as allowing the claim for partition of the land of this case).

3. Conclusion

Therefore, each claim of the plaintiffs and the successor intervenor in this case shall be dismissed as it is without merit, and the judgment of the court of first instance is unfair in conclusion, so it is revoked by accepting the appeal of the defendants, and each claim of the plaintiffs and the successor intervenor shall be dismissed, and it is so decided as per Disposition.

Justices Shin Young-chul and decorations

Judge Yang Chang-chul

Judges-Sicker

A person shall be appointed.