[1] The standard point of time to determine whether a part of an aggregate building is a section of exclusive ownership or a section of common use and its standard

[2] The case holding that the part of the ground parking lot outside an apartment site is not the common part of the aggregate building, but the part belongs to the co-ownership of all sectional owners of the apartment building for the purpose of the site ownership

[1] Articles 3, 10(1), 53, 54, 56, and 57 of the Act on the Ownership and Management of Aggregate Buildings / [2] Articles 2 subparag. 4 and 20 of the Act on the Ownership and Management of Aggregate Buildings, Article 262(1) of the Civil Act

[1] Supreme Court Decision 94Da9269 delivered on February 28, 1995 (Gong1995Sang, 1447) Supreme Court Decision 9Da1345 delivered on September 17, 1999 (Gong1999Ha, 2185) Supreme Court Decision 2004Da30279 Delivered on June 24, 2005)

Plaintiff (Attorney Shin Chang-won, Counsel for the plaintiff-appellant)

Defendant (Law Firm Gaol, Attorney Choi Sung-soo, Counsel for the defendant-appellant)

Busan High Court Decision 2005Na17587 decided August 2, 2006

Each appeal is dismissed. The costs of appeal are assessed against each appellant.

We examine the grounds of appeal.

1. Plaintiff’s ground of appeal

Article 10 (1) of the Act on the Ownership and Management of Aggregate Buildings provides that "the section for common use belongs to the co-ownership of all sectional owners: Provided, That the section for common use which is obvious that only some of sectional owners will provide for the common use shall belong to the co-ownership of all sectional owners." (hereinafter referred to as "total section for common use," and the section for common use which is partially provided for the public use by only a part of sectional owners are referred to as "part for common use"). Whether the section for common use is a section for common use shall be determined as of the time when sectional ownership is established, namely, as a matter of principle, as the whole building is completed and the whole building is registered as an aggregate building. It shall not affect whether the building is a section for common use or a change in the use thereof. Whether a part for common use by all or some of the sectional owners for common use is determined by the objective purpose according to the structure of the building, unless otherwise agreed by the owners (see Supreme Court Decision 2004Da30279, Jun. 24, 2005).

According to the reasoning of the judgment below, in light of the following facts: the apartment building of this case is composed of apartment houses of the 2th to 13th floor (84 households), commercial buildings classified under the 11 through 13, 15, and 16 (hereinafter “base floor”); the defendant operated the 11 through 13, and 15 of the underground floor as to the 103rd floor, the part of the underground floor (hereinafter “mutually omitted”) as to the 10th apartment building’s underground floor (hereinafter “the underground floor of this case”), which was established in the 1st to the above 2nd apartment building’s underground floor for the purpose of using the 1st to the 1st to the 2nd apartment building’s underground floor; the part of the 1st to the 2nd apartment building’s underground floor for the purpose of using the 1st to the 1st to the 2nd apartment building’s underground floor; the part of the apartment building’s underground floor for the purpose of using the 1st to the 2nd underground floor.

Examining the relevant evidence in light of the above legal principles and the records, the above recognition and determination by the court below is justifiable, and there is no violation of law by misunderstanding the legal principles as to common areas of an aggregate building, as alleged in the grounds of appeal, and on the other hand, in light of the objective purpose of use, etc. according to the structure of the apartment of this case, such recognition and the objective purpose of the apartment of this case, the part of the underground floor of this case cannot be viewed as a whole common area solely on the ground that the pipes, such as

2. As to the Defendant’s ground of appeal

In light of the selected evidence, the court below rejected the defendant's assertion to the purport that "The defendant has a duty to remove house electric and water tanks and deliver the part of the above ground parking lot of this case to the plaintiff who seeks exclusive use of the apartment site of this case as joint ownership, and to remove house electric and water tanks and deliver the part of the above ground parking lot of this case to the plaintiff who is the owner of the above apartment of this case, without consultation with other owners of the above apartment of this case, by installing a house electric and water tank on the part of the above ground parking lot of this case, which is the public site of this case."

Article 2 subparag. 4 of the Act on the Ownership and Management of Aggregate Buildings provides that "the term "section for common use" means a part of a building other than a section for exclusive use, a accessory to a building not belonging to a section for exclusive use, and an accessory building which has a section for common use pursuant to Article 3(2) and (3)." Thus, the ground parking lot part of the apartment site of this case outside the apartment site of this case is not a section for common use of an aggregate building, but a part of the ground parking lot of this case belongs to the co-ownership of all sectional owners of the apartment of this case for the purpose of site ownership of all sectional owners, and the related evidence is examined according to such legal principles and records, the above recognition and determination by the court below is just

3. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)