Where a sectional owner of one building succeeds to co-ownership from other co-owners on the site other than a sectional owner, separate from the site ownership acquired by the sectional owner at the time of the sale of the building, whether the other sectional owners may seek a return of unjust enrichment on the basis of the co-ownership right separately acquired (affirmative)

Articles 263 and 741 of the Civil Act

Supreme Court Decision 2009Da76522, 76539 Decided July 14, 201 (Gong2011Da58701 Decided March 14, 201)

Plaintiff

New Cooperative District Housing Association

Suwon District Court Decision 201Na21379 decided November 23, 2012

The part of the judgment of the court below against the plaintiff (appointed party), excluding the part against the designated party non-party 1, shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division. The remaining appeal shall be dismissed.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the defendant, a reconstruction association of 1,685m2 (hereinafter "the land of this case"), which was lawfully owned by the defendant's 1,68m2, and purchased the above 1,68m2 on the 5th ground, including 1,68m2 (hereinafter "the land of this case") around January 12, 2002, and it is difficult for the plaintiff to lawfully acquire the above 1/20 of the land of this case from 5m2 to 10m2, and it is difficult for the plaintiff to acquire the above 1,68m2 to acquire the above 10m3m2 to acquire the ownership of the land of this case on May 16, 202, and it is also difficult for the plaintiff to acquire the above 1/20 of the land of this case on the 5m20m2, which is the non-party 7m2 to acquire the ownership of this case's land of this case. The defendant's 1/6m27m2.

2. However, it is difficult to accept such a determination by the lower court for the following reasons.

In a case where a sectional owner of one building owns the site of the building at the time of the initial purchase of the building in lots, barring special circumstances, such as the existence of separate regulations, each sectional owner has a legitimate right to use the entire site according to the use of the site regardless of the share of co-ownership in the site. Thus, the sectional owners cannot seek a return of unjust enrichment among themselves on the ground of a difference in the share of co-ownership in the site. However, if there are co-owners other than co-owners regarding the site, the site can be used, profit-making, and management in accordance with the general legal principles regarding co-ownership, barring any other special circumstances. Thus, other co-owners may claim a return of unjust enrichment on the basis of their co-ownership share (see, e.g., Supreme Court Decision 2011Da58701, Mar. 14, 2013). Considering the above legal principle comprehensively, it is possible to separately claim a return of unjust enrichment from other co-owners, other than the sectional owners’ right to the site at the time of sale.

Examining the facts established by the court below in light of the aforementioned legal principles, the plaintiff purchased the shares of this case from ststst, and completed the registration of ownership transfer thereof, and therefore, the plaintiff has the right to use and profit from all of the land of this case at the ratio of the co-ownership shares. However, with respect to the corresponding part of the apartment of this case where the apartment of this case was constructed, and the defendant used and profit-making exclusively from the sectional ownership of this case, and the plaintiff suffered losses from not using and profit-making from the land of this case based on the share of the acquisition of this case. Therefore, even if the plaintiff acquired the ownership of this case 705 prior to the purchase of the shares of this case, the share of this case acquired the ownership of this case before the purchase of the shares of this case, is separate shares from the right to use the land of this case. Thus, the defendant is obligated to return the unjust enrichment to the plaintiff.

Nevertheless, the lower court dismissed the Plaintiff’s claim for return of unjust enrichment on the sole basis of the circumstances indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on the right to use and benefit from jointly owned property, and the right to use site

3. Meanwhile, the Plaintiff filed an appeal against the part against Nonparty 1 among the judgment below, but there is no ground for appeal as to the appellate brief or the petition of appeal.

4. Therefore, the part of the judgment of the court below against the plaintiff except for the part against the selected non-party 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

[Attachment] List of Appointeds: Omitted

Justices Jo Hee-de (Presiding Justice)