[1] In a case where a sectional owner of one aggregate building owns the site of a building, whether each sectional owner may use the entire site of the building in accordance with the purpose of use (affirmative in principle), and whether each “site of a building” in this context includes all the land of one unit where the aggregate building is located (affirmative in principle)

[2] In a case where a seller of an aggregate building transfers his/her exclusive ownership to a sectional owner and the site is subject to the registration of ownership transfer only for a partial share and leaves the remainder in his/her name, whether the seller or transferee who acquired the share can claim his/her co-ownership right against the sectional owner (affirmative with qualification)

[1] Where the sectional owners of one aggregate building own the site of the building, each sectional owner has a legitimate right to use all the site of the building according to the purpose of use, regardless of the proportion of co-ownership to the site, unless there are special circumstances, such as the existence of separate regulations. In this case, “the site of the building” includes all the land of the aggregate building where the aggregate building is located, unless there are special circumstances.

[2] After a site ownership is established for the entire site of an aggregate building, the right to use the site cannot be disposed of separately from the section for exclusive use unless otherwise stipulated by the regulations (Article 20 of the Act on the Ownership and Management of Aggregate Buildings). In cases where the seller of an aggregate building transfers the ownership of a section for exclusive use to the sectional owners, but the remaining shares remain in his/her name after the registration of ownership transfer only for a partial share and the remaining shares are left in his/her name, special circumstances, such as where the seller or transferee of the ownership of the aggregate building intends to claim a co-ownership right against the sectional owners, such special circumstances should exist, such as where

[1] Article 2 subparags. 5 and 6, and Article 4(1) of the Act on the Ownership and Management of Aggregate Buildings, Article 263 of the Civil Act / [2] Article 20 of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Decision 93Da60144 Decided March 14, 1995 (Gong1995Sang, 1598), Supreme Court Decision 2002Da16965 Decided December 27, 2002 / [2] Supreme Court Decision 201Da12392 Decided October 25, 2012

Plaintiff

Defendant 1 and eight others (Attorney Choi Jong-soo, Counsel for the defendant-appellant)

Supreme Court Decision 2011Da12392 Decided October 25, 2012

Seoul High Court Decision 2012Na89728 decided April 4, 2013

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal regarding the scope of application of the provision prohibiting separate disposition

A. Where a sectional owner of a building, which is an aggregate building, owns the site of the building, each sectional owner has a legitimate right to use all the site of the building for the purpose of use, regardless of the share of the building, unless there are special circumstances, such as where separate regulations exist, etc. (see Supreme Court Decision 93Da60144, Mar. 14, 1995). In this case, “site of a building” includes all the land in which an aggregate building is located (see Supreme Court Decision 2002Da16965, Dec. 27, 2002). Since a sectional owner’s right to use the site can not be disposed of separately from the section of exclusive ownership unless otherwise stipulated by the regulations, since a sectional owner’s right to use the site is established after the whole site of an aggregate building, it cannot be disposed of separately from the section of exclusive ownership [Article 20 of the Act on Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings”)]. The sectional owner’s right to use the site is transferred to sectional owners, but the remaining in the remaining joint ownership.

B. According to the reasoning of the lower judgment, the lower court acknowledged the fact that Nonparty 1 purchased the instant building and its site, which was completed the registration from Nonparty 2 to an aggregate building, and completed the registration of ownership transfer on August 5, 2002, and the Defendants or the former transferor sold a sectionally owned building of 9 households to Nonparty 3 on March 24, 2005, but left as it remains. On March 24, 2005, the lower court transferred the instant ownership to Nonparty 3, and the Seoul Seodaemun-gu Seoul Western-gu completed the seizure registration by the disposition of arrears on January 25, 2005, and the Plaintiff’s designated party and the designated party (hereinafter collectively referred to as “Plaintiffs”).

Based on such factual basis, the lower court, on the ground that the right to use the site was already established for the ownership of the building of this case for the ownership of the building of this case, but there was no evidence to acknowledge that there was a stipulation that the right to use the site of this case can be separately disposed of from the section for exclusive use of the building of this case, and thus, the seizure of the share of this case results in the separation of the section for exclusive use and the site of this case, which is not effective against Article 20(2) of the Aggregate Buildings Act, and the above seizure constitutes a disposition prohibited as a sale conducted by the tax office, etc. on behalf of the right holder, even though the public sale is not a direct disposal by the right holder, and thus, determined

C. In light of the above legal principles and records, although the judgment of the court below was somewhat inappropriate at the time of the reasoning of the judgment, the judgment of the court below that deemed the plaintiffs' acquisition of shares in this case as null and void is eventually justifiable. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on the scope of application under

2. As to the grounds of appeal concerning "a bona fide third party" under Article 20 (3) of the Aggregate Buildings Act

A bona fide third party who cannot oppose the prohibition of separate disposal under Article 20(3) of the Aggregate Buildings Act refers, in principle, to a third party who has acquired land which is the object of the right to use site without gathering the circumstances that are the site of an aggregate building (see Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013).

According to the reasoning of the judgment below, the court below rejected the plaintiffs' assertion that the plaintiffs constitute a bona fide third party under Article 20 (3) of the Aggregate Buildings Act, on the ground that it is reasonable to deem that the plaintiffs had been well aware of the circumstances where the shares in this case were the site of an aggregate building through the public notice of sale and the copy of the register at the time of public sale, since the above aggregate building existed on the ground at the time when the plaintiffs acquired the ownership of this case in the public sale procedure,

In light of the above legal principles and records, the above determination by the court below is just and acceptable, and there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles on a bona fide third party under Article 20(3) of the Aggregate Buildings Act.

3. Therefore, all appeals are 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 on the bench.

[Attachment] List of Appointeds: Omitted

Justices Park Poe-young (Presiding Justice)