Whether a person who has sectionally owned co-ownership can seek the exclusion of the disturbance of a third party for the entire land.

In cases where the transfer registration of co-ownership right is made with regard to the whole parcel of land, the ownership transfer registration for the part other than the specific part is under mutual title trust. The right holder can acquire ownership only for the specific part and exclusively use it and profit from it in an internal relationship. The act of interference with another sectional owner is entitled to seek the exclusion of ownership based on ownership. However, in an external relationship, the co-ownership relationship with regard to the whole parcel of land is established and the right as co-owner can be asserted only as a co-owner in an external relationship. Therefore, if a third party obstructs the ownership, not only the part of his/her own sectional ownership but also the part of the whole parcel of land may seek the exclusion of ownership as a preservation act of co-owned property.

Articles 186 [title trust], 262 and 265 of the Civil Act

Supreme Court Decision 79Da741 Decided June 26, 1979 (Gong1979, 12043) (Gong1990, 1551)

Plaintiff

Defendant-Appellant and two others, Counsel for the defendant-appellant

Busan District Court Decision 91Na7047 delivered on July 14, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. In real estate transactions, the cases where the registration of transfer of ownership corresponding to the area of the part to be purchased in the whole plane of the parcel is made without specifying the location and size of the parcel of land and without registering the division, shall not be treated as the same as the general co-ownership, and it should be treated as co-ownership or internally sectional ownership.

2. As can be seen, if part of a parcel of land is specified and the transfer registration of ownership is made with respect to the whole parcel of land, the registration of title transfer is under mutual title trust. The right holder can acquire ownership only for a specific part and use it exclusively and gain profit from it in an internal relationship. In other sectional owners' interference, ownership can be claimed in an external relation. However, in an external relation, co-ownership relation as to the whole parcel of land is established and only the right as co-owner can be asserted. Thus, if a third party's interference exists, not only the part of his own co-ownership but also the whole parcel of land can be claimed for exclusion as a preservation act of co-ownership (see Supreme Court Decision 79Da741 delivered on June 26, 1979).

3. Therefore, even if the transfer registration of co-ownership right to each of the lands of this case is in the above mutual title trust relationship, the plaintiff is deemed to be in the position of co-owner as to the whole land in relation to the defendant who is not co-owner, and thus, the plaintiff may seek the removal of interference as to the preservation act of co-owned property that he did not purchase. Thus, although the judgment below is somewhat insufficient in its explanation, it is just in its conclusion that accepted the plaintiff's claim for removal of interference, and it is not erroneous in the misapprehension of legal principles as to the legal relationship of divided ownership, such as theory, and the court below did not err in the misapprehension of legal principles as to the legal relationship of divided ownership. It cannot be said that the court below did not explain whether the transfer registration of co-ownership right to each of the lands of this case was made by the mutual title trust method

Therefore, there is no reason to discuss.

Therefore, the appeal is 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.

Justices Kim Jong-soo (Presiding Justice)