[1] In a case where a sectional owner is not holding a right to use a site or the right to use a site is extinguished upon termination of a trust contract which is the cause of holding a right to use a site, whether the combined treatment of the section for exclusive use and the right to use a site under Article 20 of the former Act on Ownership and Management of Condominium Buildings applies (negative)

[2] In a case where the owner of a site for an aggregate building seeks removal from a sectional owner who has not the right to use the site, whether the exercise of the right to demand sale under Article 7 of the former Act on Ownership and Management of Condominium Buildings must be prior to the request for removal (negative), and whether there is a benefit of lawsuit seeking removal even if it is practically impossible to remove only the section for exclusive use

[1] Article 20(1) and (2) of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 2010) / [2] Article 7 of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 2010); Article 248 of the Civil Procedure Act / [Institution of Lawsuit]

주식회사 햄튼

Nano Co., Ltd. and one other

Seoul Central District Court Decision 2010Na38570 Decided January 25, 2011

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

We examine the grounds of appeal.

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

According to Article 20(1) and (2) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter “Aggregate Buildings Act”), a sectional owner’s right to use site shall be subject to the disposition of his/her section of exclusive ownership, and a sectional owner may not dispose of his/her right to use site separately from his/her section of exclusive ownership. However, in cases where a sectional owner does not possess his/her right to use site from the beginning of the year, or the right to use site expires due to the termination of a trust contract that causes the ownership of the right to use site, barring any special circumstance, the integrated treatment of the section of exclusive ownership and the right to use site, which

After finding the facts as indicated in its reasoning based on its adopted evidence, the lower court determined that the instant trust agreement was terminated by the Korea Land Trust Co., Ltd., the trustee, by disposing of the instant land, which is the trust property, and accordingly, the right to use the site was extinguished. As such, as the Defendants acquired the ownership of the said section of exclusive ownership pursuant to Article 20(1) of the Aggregate Buildings Act at the time of acquiring the ownership of the said section of exclusive ownership, there is no room for acquiring the right to use the site by accompanying the acquisition of the section of exclusive ownership pursuant to Article 20(1) of the aforesaid Act, and that the Korea Land Trust Co., Ltd., the trustee, cannot be deemed a separate disposition of the right to use the site

In light of the above legal principles, the above judgment of the court below is just and acceptable.

As alleged in the ground of appeal, the court below did not err by misapprehending the legal principles on the unity of section for exclusive use and right to use site, or by misapprehending the legal principles on the succession and acquisition of right to use site.

2. As to the third ground for appeal

In addition to seeking removal against a sectional owner who has no right to use site, the exercise of the right to demand sale under Article 7 of the Aggregate Buildings Act does not necessarily necessarily lead to the request for removal, even if the owner of the site for an aggregate building is entitled to exercise the right to demand sale of the section for exclusive use pursuant to the aforesaid Article. Moreover, even if it is practically impossible for the Defendants to remove only the section for exclusive use as divided ownership, this is merely a defect requirement for the commencement of enforcement, and it does not constitute a ground for dismissing

The court below did not err in the misapprehension of legal principles as to the interest in a lawsuit, or in neglecting the exercise of right to ask for explanation as alleged in the ground of appeal

3. Conclusion

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

Justices Yang Chang-soo (Presiding Justice)