(a) The case reversing the original judgment which accepted a claim for judicial partition, despite the existence of an agreement on partition of the article jointly owned by our parties under an agreement;

B. Cases where there is an error in the misapprehension of legal principles as to res judicata

(c) Where it is recognizable that a superficies has been acquired according to custom on a building; and

Where co-owners of a building site divide the site and vest the site of the building into the sole ownership of one of co-owners, the owner of the building shall acquire legal superficies according to customary law for the building, except in extenuating circumstances.

Article 269 of the Civil Act, Article 366 of the Civil Act

Plaintiff

Defendant 1 and one other

Seoul High Court Decision 66Na661 delivered on April 11, 1967

The part concerning the defendants in the original judgment shall be reversed, and that part shall be remanded to the Seoul High Court.

The defendants' grounds of appeal are examined as to the defendants' attorney;

(1) According to the original judgment, the lower court recognized the following facts.

In other words, 538 square meters ( Address 1 omitted) in Seoul Special Metropolitan City, Jung-gu (Road 1 omitted) was established on March 10, 1962 on the land lot 375.7, Jung-gu ( Address 2 omitted) and around 1954, prior to the determination of replotting was made, as above, the land substitution area was planned but the land substitution area was settled, and therefore, the government office was first 538 square meters on the above land, which were 1 and 2, as shown in the previous land registration map, and the location and number of the portion to be divided to 8 persons above, as shown in the previous land registration map, were specified in the above 7th judgment below, and each purchaser was entitled to co-ownership as co-ownership by the above 17th judgment on the non-party 1 and the above 7th judgment on the non-party 2's land lot. Since the above 7th judgment on the non-party 1 and the above non-party 2's land owners were assigned to the government.

However, as seen above, if a government-owned corporation entrusted with the authority to divide the co-owned property by agreement among the co-owners in accordance with the authority delegated by the government-owned corporation in accordance with the third drawing attached to the original judgment, it is the third drawing above (24.22 square meters) and if there is a dispute as to the division, if the plaintiff filed a request for the registration of ownership transfer for the divided portion, the confirmation shall be demanded separately, or if there is a dispute as to the division, it shall be improper to demand the division. However, even if the court below recognizes the fact that the co-owned property was divided by agreement between the parties, it shall not be erroneous in the misapprehension of legal principles as to the division of the co-owned property and in the incomplete hearing, and in the absence of any other special circumstances, it shall not be deemed that the court below accepted the claim

(2) According to the original judgment, the lower court determined as follows on the front side of the Defendant’s merits. In other words, the Plaintiff filed a lawsuit against Defendant 1 prior to the instant lawsuit to remove the building (the Plaintiff filed a claim against Defendant 1 for removal of the building as stated in the claim against Defendant 1 and the Defendant Company). The Plaintiff’s claim in the instant lawsuit becomes final and conclusive against the Plaintiff. The Plaintiff’s claim is dismissed on the ground that the Plaintiff’s former (Nonindicted 1 and Nonparty 2) requested removal on the ground that the building was constructed on the site which belongs to the right upon the designation by the Party’s own authority on the premise that the Plaintiff’s former (Nonindicted 1 and Nonparty 2) designated the location and reputation of each party from among the land scheduled for substitution. However, the cause of the claim for removal is different from the cause of the instant lawsuit and the cause of the claim for removal in the instant case, and thus, the cause of res judicata effect of the final and conclusive judgment does not conflict with the Defendant’s claim for removal.

However, as stated above (1) the right to partition of co-owned property granted by agreement among co-owners recognized by the court below is clear that it was awarded around 1954, which was the time when there was a contract for the non-existence of the building site belonging to this case, and the final pleading of the previous suit held by the court below in accordance with Eul evidence No. 20 (the appellate judgment in the previous lawsuit) adopted by the court below is clear. Thus, in this lawsuit, the plaintiff's assertion of "special agreement for granting the right to partition of co-owned property to a control country which is alleged as the cause of the claim" can be asserted by the co-owner at the time of closing of argument in the previous lawsuit, and it cannot be asserted again in this lawsuit because it was cut off by the res judicata effect of the final judgment in the previous lawsuit and it cannot be asserted again in the previous lawsuit by the defendants' right to partition of co-owned property at the time of the above decision. Thus, even if the above decision of the court below did not contain any error of law by misunderstanding legal principles as to the res judicata effect as to the above building site.

Therefore, it is so decided as per Disposition with the assent of all participating judges.

Supreme Court Judge Lee Young-su (Presiding Judge) (Presiding Judge) and Lee Dong-dong Gyeong-dong