[1] Requirements for the establishment of divided ownership for one building, meaning and method of division act here / Whether divided ownership is constituted at the above point, even if it has not yet been registered as a divided building in case where the act of division and the corresponding act of division are completed objectively and physically (affirmative)

[2] Whether the owner of a section of exclusive ownership without a right to use the site has a duty to return unjust enrichment equivalent to the rent for the area corresponding to the portion to be registered as the site ownership of that section of exclusive ownership among the site (affirmative in principle)

[3] In a case where the owner of a portion of exclusive ownership without a right to use the site occupies only a certain site within a certain scope where the portion of exclusive ownership is located, not a whole site, with the owner of another portion of exclusive ownership in the same situation, whether the owner of the site where the portion of exclusive ownership is located is obligated to return the amount calculated by dividing the amount in proportion to the ratio of the area of his/her portion of exclusive ownership to his/her area from the total area of the site among the amount equivalent to the rent for the site in question (affirmative)

[1] Article 1, Article 2 subparags. 1 and 3 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 2 subparag. 6 of the Act on the Ownership and Management of Aggregate Buildings, Articles 411, 413 and 741 of the Civil Act / [3] Article 2 subparag. 6 of the Act on the Ownership and Management of Aggregate Buildings, Articles 41, 413 and 741 of the Civil Act

[1] Supreme Court en banc Decision 2010Da71578 Decided January 17, 2013 (Gong2013Sang, 298) / [2] Supreme Court Decision 91Da40177 Decided June 23, 1992 (Gong1992, 2242) Supreme Court Decision 2010Da7279, 72786 Decided January 27, 201 (Gong2016Da219419, 219426 Decided June 28, 2018)

Plaintiff (Attorney Geo-ok et al., Counsel for the plaintiff-appellant)

Defendant 1 and 5 others (Attorneys Ko Young-soo et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2016Na64564 Decided December 13, 2017

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 2 Subparag. 1 and 3 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act on the Ownership and Management of Aggregate Buildings”) provides that “When several sections of a building divided in structure can be used as an independent building, each section shall be the object of ownership, as prescribed by this Act” (Article 1). In addition, where the ownership of a building, the object of which is exclusive ownership, is the sectional ownership (Article 2 Subparag. 1 and 3), is defined as a sectional ownership right (Article 2 Subparag. 1 and 3). In addition, where one building is established as an aggregate building and its sectional ownership is the sectional ownership of a building. In order to establish sectional ownership of one building, there are only one building in terms of objective and physical aspect, and separate sections of a building should be the object of sectional ownership of a building divided in structure, structure, and use. Here, the act of sectional ownership of a building physically partitioned in one building should be established as a sectional ownership right, not a specific act of sectional ownership, but a specific act of sectional ownership, the form and quality of the building, etc.

Unless there exist any special circumstances, the owner of an aggregate building who does not have the right to use the site occupies the site of a section of exclusive ownership without any legal ground. As such, he/she obtains unjust enrichment equivalent to the rent for the area corresponding to the portion to be registered as the site ownership of the said section of exclusive ownership. The owner of the aforementioned section of exclusive ownership who does not have the right to use the site suffers from damages equivalent to the same amount. Therefore, barring any other special circumstance, the owner of the said section of exclusive ownership has the duty to return unjust enrichment to the owner of the said section of exclusive ownership (see, e.g., Supreme Court Decisions 91Da40177, Jun. 23, 1992; 2010Da7279, 72786, Jan. 27, 2011). Since unjust enrichment from the one who shares the said section of exclusive ownership is indivisible, the owner is obligated to return unjust enrichment with regard to the entire area of exclusive ownership owned by the said section of exclusive ownership, as well as to the one’s portion of exclusive ownership.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. On the land outside the Seoul Jung-gu (Land Number 1 omitted) and 197, there are buildings with 2,622.35 square meters on the 4th floor of reinforced concrete structure, 2,830.74 square meters on the 3rd floor, 2,830.74 square meters on the 2,830.74 square meters on the 4th floor, 298.18 square meters on the underground floor, 2,908.26 square meters on the 2nd underground floor, 1,804.13 square meters on the 1969 commercial building (hereinafter “instant commercial building”). While there were several identical commercial buildings on the site of the instant commercial building, as large-scale fire occurred on October 30, 197, existing commercial buildings and landowners were newly constructed and distributed to the land and stores in accordance with the area to be owned.

B. On the second underground floor of the commercial building of this case, there are about 1,690 individual stores from the first to the third above ground, and management offices and warehouses from the fourth above ground. There are several shops on one parcel where the part of individual stores extends over several parcels of 198, and there are land used only for common use such as passage, etc. among the parcels of 198.

C. The instant commercial building is registered as an aggregate building consisting of 258 sections for exclusive use on the building ledger, and the registry forms general buildings with respect to 258 sections for exclusive use. In the title section of each building registry, the “location number of 198 lots” shall be indicated in the “location number and building number” column, and the “building details” column shall indicate the entire contents of the instant commercial building, and the following number, floors, and size (part of the building shall be indicated in the whole contents of the building where the relevant store is located, and the floor and size of the relevant individual store shall be indicated) shall be indicated. The merchants of the instant commercial building, including the Defendants, shall be divided into the said 258 stores into 1,690 separate stores, and shall be registered in the way of transferring shares according to the area of the individual store.

D. Individual stores of the instant commercial building are marked by the floor plan of the building, the number of floors, and the location are specified, and the arrangement level by floor is also indicated at the entrance of the instant commercial building. The boundary between each individual store and common areas such as the neighboring store or passage in various forms, such as partitions, display zone, and business hours outside the business hours, etc., are divided by each individual store. The boundary mark in the ceiling is also installed with the number plate by door, which is easily visible from the tent, along with the trade name of the store, and the boundary mark on the floor is also marked by yellow lines, etc.

E. The owners of individual stores in the commercial building of this case generally own the land in the part where individual stores are located or the land corresponding to the size of individual stores among the land.

F. The Plaintiff purchased shares of 2.2/47.9 shares of the Jung-gu Seoul Special Metropolitan City (number 2 omitted) and 158.3 square meters (hereinafter “instant land”) among the 198 lots of land on the instant commercial building site, and completed the registration of transfer of shares on January 14, 2010.

G. The Defendants purchased individual stores in the commercial building of this case and completed the registration of transfer of co-ownership as stated in the list of real estate attached to the court below, but did not hold rights, such as the right to use the land of this case.

3. Examining these facts in light of the aforementioned legal principles, regardless of whether the instant commercial building was registered as an aggregate building under the Aggregate Building Act, it constitutes an aggregate building consisting of a section for exclusive use and a section for common use, etc., which is the object of divided ownership for each individual store. However, in light of the developments leading up to the construction of the instant commercial building and the distribution of land and a store, legal relationship, and current status of use, the owner of the instant individual stores of the instant commercial building, rather than possessing the entire site of the instant commercial building according to the ratio of the area of the individual store, shall be deemed to jointly possess the site of the instant building with the owners of other individual stores. Therefore, if the individual stores owned by the Defendants are located on the instant land, the Defendants, who did not have the right to use, etc., are obligated to return the amount divided by the ratio of the area occupied by the individual stores owned by the Defendants to the total area of the individual stores located on the instant land among the amount equivalent to the rent for the ownership of the instant land owned by the Defendants. As long as the Defendants alone own the individual stores, the registration

4. On the grounds indicated in its reasoning, the lower court rejected the Plaintiff’s claim on the ground that the instant commercial building constitutes an aggregate building, and the Defendants without the right to use the site are obligated to return the amount equivalent to the share amount to be registered as the site ownership of individual stores, which are exclusive sections for exclusive use among the entire site of the instant commercial building, as unjust enrichment. However, the lower court rejected the Plaintiff’s claim on the ground that there was no assertion or proof as to the ratio of the share amount to

Of the judgment of the court below, the part that the commercial building of this case constitutes an aggregate building is justifiable in light of the aforementioned legal principles. Contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the principle of right to property, or by misapprehending the legal principles on sectional ownership under the Aggregate Buildings Act. However, among the judgment of the court below, the part that the defendants are obliged to return the rent equivalent to the amount of the rent for the area corresponding to the portion to be registered as the site ownership of an individual store, which is a section of exclusive ownership, among the entire site of the commercial building

5. 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 Kwon Soon-il (Presiding Justice)