In a sales contract for the purpose of acquiring the ownership of a partitioned building, in order to become null and void a contract because the seller’s obligation to transfer ownership is in original impossibility, whether it is impossible under the generally accepted social norms to secure the independence in the structure and use of the building as well as “after the time of the sales contract” (affirmative)

In a sales contract aimed at acquiring the ownership of a partitioned building, the seller's obligation to transfer ownership is in original impossibility and thus the contract is null and void, the object of the sale is a partitioned building at the time of the sales contract, and the object of the sale and purchase has not been equipped with structural and independent independence in use beyond the extent that it is impossible for the parties to have independence in structural structure and use in accordance with the terms and conditions agreed between them.

In addition, in order to establish sectional ownership for one building, there exists one building in an objective and physical aspect, separate building parts must have structural independence and independence in use, and physically partitioned building parts among one building must be the object of sectional ownership. In this context, independence in use means that the relevant building part, which is the object of sectional ownership, has function and utility as a single building independently. Whether independence in use is recognized should be determined by taking into account the utility value of the relevant part, whether it can directly pass through outside, etc. In particular, if the relevant building part is a “sectional store” subject to Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings, the characteristics of such sectioned store should be considered.

Articles 1 and 1-2 of the Act on the Ownership and Management of Aggregate Buildings

Supreme Court en banc Decision 2010Da71578 Decided January 17, 2013 (Gong2013Sang, 298)

Plaintiff 1 and one other (Attorney Kim Dong-young, Counsel for the plaintiff-appellant)

Pamp Industry (Law Firm Mapyeong, Attorneys Kim Ji-hyung, et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Na2007539 decided April 13, 2017

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The reasoning of the lower judgment reveals the following facts.

A. On May 7, 2009, Plaintiff 2 entered into a sales contract with the Defendant to purchase d○○○○○○○○○ (6.51m2 of the exclusive ownership area) on the instant shopping mall and registered separately from the Defendant for KRW 150,217,000. On February 26, 2010, Plaintiff 1 entered into a sales contract with the Defendant to purchase d △△△△△ (hereinafter “each of the instant stores”), which was already registered separately (hereinafter “the instant stores”). The Plaintiffs completed the registration of ownership transfer for the relevant stores around that time, and paid all the relevant sales amount to the Defendant.

나. 이 사건 각 점포의 바닥에 “28B-△△△”, “28D-○○○”이라는 건물번호표지가 새겨진 금속판과 경계표지로 보이는 “십” 또는 “ㅏ” 모양의 금속판이 부착, 설치되어 있으나 위 경계표지 재료의 색이 이 사건 상가 지하2층 바닥에 부착되어 있는 띠 모양 부분의 색과 명확히 구분되지 아니하고, 점포의 경계표지나 건물번호표지가 상당 부분 손상되어 있다.

C. Each of the instant stores is a separate store governed by Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”).

2. The judgment of the court below is as follows.

The plaintiffs did not have independence from other parts due to structural structure or use. Each sales contract of this case is null and void since each store of this case does not have independence from other parts due to structural independence, and it does not meet the requirements set forth in Articles 1-2 of the Aggregate Buildings Act easing the requirements for structural independence, and Articles 1-2 (1) of the former Act on Ownership and Management of Condominium Buildings 1 and 2 of the Regulations on Boundary Marks and Building Number Marks. In light of the size of exclusive use area of each store of this case, the structure of columns, etc., the possibility of change of use in the future, the defendant's attitude, etc., each store of this case cannot be the object of sectional ownership.

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

A. The sales contract aimed at acquiring the ownership of a sectioneded building is an original impossibility of a seller’s duty to transfer ownership, so that the contract is null and void, it should reach the extent that it is deemed impossible in light of social norms to have independence in structural structure and use as agreed between the parties, beyond the degree that the object of sale and purchase was a sectioned building at the time of the sales contract and did not have independence in use.

In addition, in order to establish sectional ownership of one building, there exists one building in an objective and physical aspect, separate building parts must have structural independence and independence in use, and physically partitioned building parts among one building should be the object of sectional ownership (see Supreme Court en banc Decision 2010Da71578, Jan. 17, 2013). For this purpose, independence means that the relevant building part, which is the object of sectional ownership, has functions and functions as a single building independently. Whether independence in use is recognized should be determined by taking into account the utility value of the relevant part and whether it can directly pass through the outside. In particular, if the relevant building part is a "section store" subject to Article 1-2 of the Multi-Family Building Act, the characteristics of such sectional store should be considered.

B. According to the facts acknowledged by the court below, the second floor of the commercial building of this case where each of the stores of this case is leased in one unit and used as the food center of the department store, and during the lease period, the division and blocking facilities are not installed, or the boundary mark and building number mark are not installed and attached firmly. However, it is difficult to conclude that each of the stores of this case is a separate store to which Article 1-2 of the Aggregate Buildings Act applies, even after the lease period expires in light of the details of the contract for the sale in this case or the convenience of installation of the above indication. Considering that each of the stores of this case is a separate store to which Article 1-2 of the Aggregate Buildings Act applies, it is sufficient to recognize the mitigated structural independence under Article 1-2 of the Aggregate Buildings Act according to its use relation after the contract for sale in this case, and this corresponds to the intent of the plaintiffs who concluded the contract for sale in this case. Considering the legislative attitude that the Aggregate Buildings Act has alleviated structural independence, it is difficult to view that it has a boundary mark or building number mark

C. In addition, comprehensively taking account of the evidence duly admitted by the lower court, each of the instant stores is directly connected to the passage, which is a common area, so it is possible to directly pass through the outside without going through other sections for exclusive use. Although the exclusive use area is narrow, it is difficult to readily conclude that each of the instant stores is a separate store under Article 1-2 of the Act on the Ownership and Management of Aggregate Buildings, and there is no other circumstance to recognize independence in use. Therefore, each of the instant stores cannot be deemed to be the object of the sectional ownership on the ground that there is no independence in use.

D. Nevertheless, the lower court determined that each of the instant sales contracts was null and void solely for the reasons indicated in its holding. In so doing, it erred by misapprehending the legal doctrine on structural independence and independence in the aggregate building and on the invalidation of a contract, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point is with merit.

4. Therefore, without examining the remainder of the grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)