[1] The requirements to establish a mutual title trust relationship between co-owners of one building, or a sectionally owned co-ownership relationship between co-owners of one building

[2] Whether the method of management of common property is legitimate to determine that a person with a major share in the co-owned building should exclusively use and benefit from a specific part of the co-owned building (affirmative), and whether co-owners who use and benefit from all co-owners who use and benefit from the co-owners who use and benefit from the co-owned building even within the area equivalent to their own share ratio are unjust enrichment corresponding to their share (affirmative)

[1] In a case where two or more persons agree to divide ownership among one building, the location and size of which are specified, and parts of which are independent in structure and use, and the registration is made at the proportion corresponding to the size of each sectional ownership for convenience, the mutual title trust relation of co-ownership registration or sectionally owned co-ownership relation of each building is established among sectional owners. However, in a case where the location and size of each part of the one building are not specified, or where independence in structure and use is not recognized, a general co-ownership relation is established, even if there is an agreement among co-owners to the effect that sectional ownership is divided, and a mutual title trust relation of co-ownership registration or sectionally owned co-ownership relation is established.

[2] The method of management of co-owned property is legitimate to determine that a person with a majority share in the co-owned building should exclusively use and benefit from a specific part of the co-owned building. However, even if the specific part is within the area equivalent to his/her share ratio, a co-owner who uses and benefit from all the co-owners, including a majority share holder, shall be deemed to have made unjust enrichment corresponding to his/her share in the co-owned property. This is because all co-owners can use and benefit from all the co-owned property at the share ratio.

[1] Article 103 of the Civil Act / [title trust] Articles 262, and 268(1) of the Civil Act / [2] Articles 263, 265, and 741 of the Civil Act

[1] Supreme Court Decision 200Ma2633 Decided June 15, 2001 (Gong2001Ha, 2149), Supreme Court Decision 2006Da84171 Decided May 27, 2010 (Gong2010Ha, 1205) / [2] Supreme Court Decision 88Da3385 Decided September 24, 1991 (Gong191, 2590), Supreme Court Decision 2009Da76522, 76539 Decided July 14, 2011

Plaintiff 1 and one other (Law Firm Han, Attorneys Kim-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and seven others (Attorney Park Jae-ok, Counsel for the defendant-appellant)

Seoul High Court Decision 2010Na6071 decided April 14, 2011

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Although it is not bound by a judgment on other civil cases, etc. in a civil trial, the facts already established in the relevant civil case cannot be rejected without reasonable grounds (see, e.g., Supreme Court Decisions 92Da51372, Mar. 12, 1993; 2008Da92312, Sept. 24, 2009).

Meanwhile, in a case where two or more persons agree to divide ownership among one building, the location and area of which are specified and independent in its structure and use, and the registration is made in proportion to the area of each sectional ownership for convenience, the mutual title trust relation between co-ownership owners or sectionally owned co-ownership relation between the building (see, e.g., Supreme Court Order 2000Ma2633, Jun. 15, 2001; Supreme Court Order 2006Da84171, May 27, 201). In a case where a mutual title trust relation between co-ownership owners or sectionally owned co-ownership relation between co-ownership is established, even if there is an agreement to divide ownership between co-owners, if the location and area of each part of the building is not specified, or the structural and use independence is not recognized, the mutual title trust relation or sectionally owned co-ownership relation of the building is established.

In addition, it is legitimate to determine that a person who has a major share in the co-owned building should exclusively use and benefit from a specific part of the co-owned building as a method of management of the co-owned property. However, even if the specific part is within the area equivalent to his/her share ratio, the co-owner who uses and benefit from all other co-owners, including a majority share holder, shall be deemed to have made unjust enrichment corresponding to his/her share in the co-owners, even if the specific part is within the extent equivalent to his/her share ratio, but does not use and benefit from all other co-owners. This is because all co-owners can use and benefit from all the co-owned property at the share ratio (see, e.g., Supreme Court Decisions 8Meu385, Sept. 24, 199; 2009Da76522, Jul. 14, 2011).

2. Comprehensively taking account of the evidence adopted: ① Nonparty 1 and Nonparty 2 newly built the instant building on 2nd underground and 4nd ground around January 1984; ③ Nonparty 1 and Nonparty 2, on the 2nd floor of the instant building (hereinafter “the instant building”) and on the 2nd floor, registered the ownership transfer of the boiler room in the name of Nonparty 1 and Nonparty 2; ② Nonparty 1 and Nonparty 2 divided the 1st floor of the instant building into 20 stores, and marked the ownership transfer registration of the instant building into 5th unit of 5th unit of 7th unit of 4th unit of 5th unit of 5th unit of 7th unit of 5th unit of 5th unit of 5th unit of 5th unit of 5th unit of 5th unit of 5th unit of 5th unit of 5th unit of 7th unit of 5th unit of 5th unit of 5th unit of 7th unit of 5th unit of 5th unit of 1 unit of 5 unit of 2.

The court below determined that the co-owners of the part of the first floor of the building of this case did not bear the duty to return unjust enrichment from possession and use of the said 20 stores, if the non-party 1 and the non-party 2 agreed to independently occupy and use the said 20 stores under the condition that the number, location, and size of the 1st floor of this case were specified in the dividing drawing, and the co-owners of the above 20 stores were allocated shares based on the dividing drawing, and if the buyers of the above 20 stores or the persons who acquired the said 20 stores independently occupy and use the said 20 stores under the condition that the non-party 1 and the non-party 2 sold them in lots, the court below held that the non-party 1 and the non-party 2 were not liable for the return of unjust enrichment from possession and use of the 6 stores. In addition, the court below determined that the non-party 3's co-ownership share cannot be claimed against the non-party 6 stores and the non-party 21.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the reasoning of the judgment below and the records, the non-party 3's share transfer registration remains without cancellation even after the above co-ownership share was registered with the promotional safe, and the plaintiff 1 filed a lawsuit against the defendant 2 who occupied and used the first floor of the building in question on April 3, 2007 against the non-party 2 who was in possession and use of the second floor of the building in Seoul Southern District Court No. 2007hap639, the non-party 2's share transfer and the return of unjust enrichment from the possession and use of the building. The Seoul Southern District Court rendered a judgment dismissing the plaintiff 1's request on July 20, 207 as to the non-party 1's share ownership as well as the non-party 2's share transfer registration on the non-party 1's remaining partitioned ownership at the time of the sale of the building in question. The Seoul Southern District Court rejected the plaintiff 1's claim for the non-party 1's exclusive share ownership based on the plaintiff 1's share ownership.

B. According to the facts established in the previous appellate judgment, 20 shops inside the 1st floor of the building of this case were not installed with walls that can be separated from each shop at the time of sale, and each shop was divided without accurate measurement only by drawing, and thereafter, the buyers installed partitions later while running their businesses at each shop. In addition, even if examining the records of this case, there are no data to recognize the above different facts, and the lower court did not reject the above facts with reasonable grounds.

Therefore, it is difficult to view 20 shops inside the first floor of the instant building as independent in its structure and use, and even if the buyers who purchased co-ownership shares in the part of the first floor of the instant building at the time of such sale were designated as the shop indicating the specific number and location in the subdivision drawing, they cannot be deemed as having sectionally owned relation to the part of the instant first floor building.

In light of the above circumstances, the buyer who exclusively occupied and used the designated store after receiving the share of the first floor of the building of this case, or the co-owners who acquired the share from the buyer who exclusively occupied and used the designated store, have exclusively occupied and used it including the part that affects the co-ownership of other co-owners. Thus, barring special circumstances, barring special circumstances, such as the fact that the buyer consented to the gratuitous use of the share of the other co-owners by failing to use or profit-making.

Furthermore, Nonparty 3 received 60.79/502.14 shares of the part on the first floor of the instant building from Nonparty 1 and Nonparty 2, and was designated as the store No. 6. However, regardless of whether Nonparty 3 was in a situation where he could actually use and profit from the part on the first floor of the instant building, it cannot be deemed that Nonparty 3 renounced his right to use and benefit from the part on the first floor of the instant building based on his share. The genuine intention of Nonparty 3 is reasonable to deem that Nonparty 6 was the condition under which he actually guaranteed his exclusive right to use and benefit from the building No. 6, or in return, consented to the use of and benefit from each part on the instant building on the first floor by other buyers.

However, prior to the sale, Nonparty 1 and Nonparty 2 had already exercised their rights by allocating their shares in the name of Nonparty 6 with respect to Nonparty 3, setting up a right to collateral security, etc. The above co-ownership share was occupied and used by the successful promotion depository or Defendant 2, etc., who was the transferee of the successful promotion depository or the right to exclusive use and benefit from the part of the store No. 6 in the auction procedure, and thereby, the ombudsman could not use and benefit from Nonparty 3 and Nonparty 3’s co-ownership share at all.

Inasmuch as Nonparty 3 or the Plaintiffs could not use or benefit from the store No. 6 due to the exercise of rights by other buyers or their assignees, it is difficult to view that Nonparty 3 or the Plaintiffs consented to the co-owners of other buyers or the co-owners who acquired their co-ownership shares in the first floor of this case to use without compensation the part that affects the co-ownership of Nonparty 3 or the Plaintiffs’ co-ownership from among the stores inside the building of this case. Furthermore, if Nonparty 3 or the Plaintiffs did not use or benefit from the part equivalent to their co-ownership shares in the first floor of this case other than the store No. 6, if they did not use or benefit from the part equivalent to their co-ownership among the stores of this case, the co-owners of other buyers or their co-owners who acquired their co-ownership shares should be deemed to have exclusively occupied and used the share of Nonparty 3 or the Plaintiffs’ co-ownership share, including the part that affect the co

Therefore, unless there are special circumstances, the Defendants, who are the buyers of each shop inside the first floor of the instant building or take over the store from them, are obligated to return to the Plaintiffs the portion equivalent to the Plaintiffs’ co-ownership share out of the profits from the possession and use of each of the relevant stores during the period for which the Plaintiffs were unable to use and make profits from the area equivalent to the Plaintiffs’ co-ownership share within the scope sought by the lawsuit of this case

4. Nevertheless, the lower court rejected the Plaintiffs’ claim for restitution of unjust enrichment on the grounds that the Defendants did not have a duty to return to the Plaintiffs the benefits accrued from exclusively occupying and using each of the stores on the first floor of the instant building solely on the grounds stated in its reasoning. However, the lower court determined that only Nonparty 1 and Nonparty 2, who sold the store No. 6 to Nonparty 3, are liable for damages, etc., and thus rejected the Plaintiffs’ claim for restitution of unjust enrichment. In so doing, the lower court erred by misapprehending the legal doctrine on the duty to return unjust enrichment between the co-owners in relation to co-ownership and general

Meanwhile, under the premise that the Defendants were or had a co-ownership share 60.79/502.14 among the 1st floor of the instant building, the Plaintiffs asserted to the effect that the Defendants were obligated to return unjust enrichment corresponding to the above co-ownership among their stores by exclusively occupying and using each of the pertinent parts of the 1st floor of the instant building, and claim payment by calculating the amount equivalent to the rent at the 6th shop multiplied by the respective shares of the Defendants’ respective co-ownership ratio as the unjust enrichment amount by the Defendant. This is a part of the Plaintiffs’ assertion which is clearly excessive due to negligence or misunderstanding, or contradictory from the legal perspective of the Plaintiffs’ assertion, and the lower court after remanding the building, pointed out that the Defendants actively exercising their right of explanation should be given the opportunity to state

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)