[1] Whether the registration of a collective building ledger or an indication of a sectioneded building is necessary to recognize the establishment of sectional ownership (negative)

[2] The validity of a disposition of a site that goes against the unity of the section for exclusive use and the right to use the site (negative)

[1] Article 1, Article 2 subparags. 1 and 3, Article 56 of the Act on the Ownership and Management of Aggregate Buildings, Article 46 of the Registration of Real Estate Act / [2] Article 20 of the Act on the Ownership and Management of Aggregate Buildings

[1] [2] Supreme Court en banc Decision 2010Da71578 Decided January 17, 2013 (Gong2013Sang, 298) / [1] Supreme Court Decision 98Da35020 Decided July 27, 199 (Gong199Ha, 1747) / [2] Supreme Court en banc Decision 98Da45652, 4569 Decided November 16, 200 (Gong2001Sang, 39) Supreme Court Decision 2004Da742 Decided March 10, 206 (Gong206Sang, 600)

Plaintiff 1 and one other (Attorney Choi Young-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 201Na1448 delivered on August 1, 201

Seoul Central District Court Decision 201Na38249 Decided January 11, 2012

All appeals are dismissed. The costs of appeal are assessed against the defendant.

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

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

In order to establish sectional ownership of one building, there is only one building in an objective and physical aspect, and there is a separate act to divide the physically partitioned part of the building into the object of sectional ownership (see Supreme Court Decision 98Da35020, Jul. 27, 1999, etc.). Here, subdivision of a building is a kind of legal act in which, without changing the physical form and quality of the building, the specific part of the building is to be the object of separate ownership under the legal concept, and it is recognized if the disposal authority’s intention is objectively indicated outside, not to limit the time and method, but to recognize the existence of division if the objective intention of division is objectively indicated to be a sectioned building through the application for building permission or the sales contract, etc. Thus, if one building and the building corresponding to the act of division are completed objectively and physically, it can be recognized that there is a sectional ownership, and even if it is registered in the collective building ledger or the building is not registered in the register, it is established as a sectional ownership (see Supreme Court en banc Decision 2017Da13717, etc.).

Meanwhile, Article 20 of the Aggregate Buildings Act provides that the sectional owner's right to use site shall follow the disposition of his section of exclusive ownership, and the sectional owner shall not dispose of the right to use site separately from his section of exclusive ownership unless otherwise stipulated by the regulations, and the prohibition of separate disposal shall not oppose a third party who has acquired real rights in good faith unless it is registered. The purport of the above provision is to prevent the separation between the section of exclusive ownership from being registered and the right to use site from being registered, thereby promoting stability in legal relations with the aggregate building by preventing the occurrence of sectional ownership without the right to use site (see Supreme Court Decision 2004Da742, Mar. 10, 206). Therefore, the disposal of a site contrary to the unity of the section of exclusive ownership and the right to use site has no effect (see Supreme Court en banc Decision 98Da45652, Nov. 16, 200, etc.).

According to the reasoning of the judgment below, the court below acknowledged the facts based on the adopted evidence. The apartment of this case was established around July 13, 2007 (or at the latest around August 16, 2007) with the columns, roof, and main walls from the first to the nine floors above the ground, and each section for exclusive use inside the apartment of this case has independence in structure and use. Further, the association of this case, upon approval of the business plan, expressed its intention of division through the conclusion of the contract for exclusive use inside the apartment of this case on December 28, 2005, and thus, it is also recognized that the act of division has been established. Thus, the court below determined that the first establishment registration of a mortgage on each of the lands of this case was revoked on August 23, 2007, since each of the exclusive ownership of this case was already established after the completion of the contract for construction of a mortgage on each of the lands of this case.

According to the above legal principles and records, the above judgment of the court below is just, and there are no errors in the misapprehension of legal principles as to the requirements for establishment of divided ownership, the time of establishment, the scope of appellant, and the principle

2. As to the third ground for appeal

Examining the reasoning of the judgment below in light of the records, it is just for the court below to reject the defendant's assertion that each of the lands of this case constitutes a third party in good faith, since the defendant concluded each of the contracts to establish a mortgage on the land of this case without gathering the circumstance that each of the lands of this case is a site of an aggregate building

3. As to the fourth ground for appeal

Based on its stated reasoning, the lower court rejected the Defendant’s assertion that: (a) in subrogation of the instant association, seeking cancellation of the registration of establishment of each of the following units in the name of the Defendant was contrary to the good faith principle, on the ground that the Plaintiffs knew of the completion of the registration of establishment of a new establishment in the name of the Defendant bank at the time

In light of the relevant legal principles and records, the above measures of the court below are just, and there is no error in the misapprehension of legal principles as alleged in the grounds of

4. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)