In a case where Gap et al. suspended construction after completion of a part of the structural construction of the building for which building permission was granted for multi-household housing, and thereafter acquired Eul's co-ownership in the compulsory sale procedure for co-ownership shares of Gap et al., the case holding that Eul cannot be deemed to have been established before the compulsory sale procedure for a compulsory sale by official auction on co-ownership of Gap et al. since it is difficult to view that one building exists in an objective and physical aspect at the time of the discontinuance of construction, and it is difficult to view that

Article 1, Article 2 subparagraphs 1 and 3, and Article 20 of the Act on the Ownership and Management of Aggregate Buildings

Modem Co., Ltd. (Law Firm Roon, Attorneys Gyeong Dong-dong et al., Counsel for the defendant-appellant)

Korea

Defendant (Appointed Party) (Law Firm Shin, Attorneys Kim Jae-in, Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na25007 decided October 26, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant (appointed party) and the appointed party, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

A. In order to establish sectional ownership of one building, there exists one building in an objective and physical aspect, and there is a separate act of distinguishing the physically partitioned part of the building from the one building as the object of sectional ownership, respectively. Here, the act of partitioning is a kind of legal act that intends to divide the specific part of the building into the object of sectional ownership without changing the physical form and quality of the building. It is not a special restriction on the time and method, but it is acknowledged if the separate intention of the disposal authority is objectively indicated from the point of view. Therefore, even before the physical completion of the sectional ownership, if the intention of distinguishing that the building will be a sectioned part of the building which is newly constructed in the future through the application for building permission or the contract for sale in lots is objectively and physically completed, the existence of the act of partitioning can be recognized, and even if the building is registered in the collective building ledger or the building is not registered in the register, it is established at that point (see, e.g., Supreme Court en banc Decision 2017Da7578, Jan. 17, 2013).

B. The court below held that, although the building of this case was not completed at the time of the compulsory auction procedure, it is obvious that the owner of this case, who seeks to become the object of sectional ownership from the time of obtaining the building permit, the designated parties, the parties in the court below's selection, the co-defendants in the court below's decision, and the non-party's intent. The building of this case was a multi-household house building scheduled to be the first floor, the sixth floor, and the fifth floor above the ground, and its construction was completed at the time of November 2003, and since some households such as columns, walls, and 201 and 202 were sold to the general public, 9 households on the above ground can be recognized independence in its structure and use, it is presumed that the building of this case had been established as a sectional ownership relationship with the building of this case before the compulsory auction procedure of this case, and that the building of this case was not subject to sectional ownership under Article 20 of the Act on Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act"), and its right to co-ownership share was prohibited in the site of this case.

Examining the reasoning and records of the judgment below in light of the aforementioned legal principles, the building of this case is originally planned to be multi-household housing with 10 households with the 6th underground floor and 6th ground (1st, 2 through 5th, 61st household units). Building permission was granted to the same content. Since only 9 households with the 5th floor above the ground was completed at the time the construction was suspended, it cannot be deemed that the structure and form of the building were constructed to the extent that it is recognized as identical to that of the building permit in terms of social norms, it is difficult to view that 1 building exists in an objective and physical aspect (see Supreme Court Decision 2004Da67691, Nov. 9, 206). Furthermore, it is difficult to view that the building of this case was completed all corresponding to the act of objectively separating it through a request for building permit, and thus, it cannot be deemed that the building of this case existed as a compulsory auction before the procedure for compulsory sale and its co-ownership share was not established.

Therefore, although the reasoning of the court below is not appropriate, the conclusion that the plaintiff's share acquisition in this case is valid is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the prohibition of separate disposition under Article 20 of the

2. Regarding ground of appeal No. 3

Examining the records in light of the relevant legal principles, the court below was just in holding that the plaintiff's filing of the claim in this case without exercising the claim for sale under Article 7 of the Aggregate Buildings Act does not constitute an abuse of rights for reasons stated in its holding. In so doing, the court below did not err by misapprehending the legal principles

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant (appointed party) and the appointed party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Park Poe-young (Presiding Justice)