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1. The remainder of the amount calculated by deducting the auction expenses from the proceeds by selling the C Forest land 65,827 square meters at Namyang-si; and
Reasons
1. Basic facts
A. As to the portion of 3/4 of C forest 65,827 square meters (hereinafter “instant forest”) in Namyang-si, Namyang-si, the registration of ownership transfer in the name of the Plaintiff and the remaining 4 shares was completed respectively.
B. There is no agreement between the Plaintiff and the Defendant on the method of dividing the forest of this case.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, and 3, the purport of the whole pleadings
2. Determination
A. According to the above acknowledged facts, the forest of this case is presumed to be jointly owned by the Plaintiff and the Defendant. As of the date of closing argument of this case, the Plaintiff and the Defendant did not reach an agreement on the method of partition of the forest of this case. Thus, barring special circumstances, such as the agreement prohibiting partition, the Plaintiff may file a claim against the Defendant for partition of the forest of this case.
B. As a matter of principle, partition of co-owned property by the relevant legal doctrine is to be divided in kind as long as a reasonable partition can be made according to each co-owner's share. If it is impossible to divide in kind or the value thereof might be substantially damaged due to the division, the price shall be divided through an auction (Article 269 (2) of the Civil Act). However, in the payment division, the requirement that "it is impossible to divide in kind" is not physically strict interpretation, but it includes cases where it is difficult or inappropriate to divide in kind in light of the nature, location, area, use situation of the co-owned property, use value after the division, etc. (see, e.g., Supreme Court Decision 2002Da4580, Apr. 12, 2002) and the following circumstances, namely, the following circumstances revealed by each entry in Gap 5 and 6 evidence, which are formed in the northwest forest in this case's way (see, e.g., the ratio of share ownership of the defendant in the land formed in the northwest forest.