[1] Whether it is legitimate for a majority of co-ownership holders to determine that a specific part of the co-owned property should be exclusively used and profit-making (affirmative)

[2] Whether a minority right holder of a co-owned land may claim the exclusion of possession against a possessor who is in a position to obtain the registration of ownership transfer by acquiring the remaining majority shares (negative)

[1] The detailed method for the use and profit-making of the common property among the co-owners shall be determined by a majority of co-owners' shares as matters concerning the management of the common property, and even if there was no agreement with the other co-owners on the method for the management of the common property in advance, it is legitimate for co-owners with a majority of shares to decide to exclusively use and profit from the specific part of the common property as the method for the management of the common property. However, the contents of the use and profit-making can not be up to the degree of "disposition" or "change" which cause a fundamental change in the existing form of the common property, and for example, it goes beyond the scope of "management" to newly construct a building on the site with a majority of co-owners.

[2] A third party who acquires a small number of shares less than the majority from some co-owners at the time of the completion of the prescription after the completion of the prescription period may not claim the exclusion from possession, such as removal of a building on the ground and transfer of land, against the acquisitor (Possessor) who is in the position to become a majority right holder after completing the registration of ownership transfer by prescription for the remaining shares.

[1] Articles 264 and 265 of the Civil Code / [2] Article 265 of the Civil Code

[1] Supreme Court Decision 90Da20220 delivered on April 12, 1991 (Gong1991, 1374), Supreme Court Decision 88Meu3855 delivered on September 24, 1991 (Gong1991, 2590) / [2] Supreme Court Decision 95Da24586 delivered on September 5, 1995 (Gong195Ha, 3359)

Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim (Attorney Park In-bok et al., Counsel for plaintiff-appellant)

Busan District Court Decision 99Na11882, 11899 delivered on May 18, 2000

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the main lawsuit is reversed, and that part of the case is remanded to Busan District Court Panel Division. The Defendant (Counterclaim Plaintiff)’s appeal on the counterclaim and the Plaintiff’s appeal are dismissed, respectively.

1. We examine the grounds of appeal by the Plaintiff (Counterclaim Defendant, hereinafter referred to as “Plaintiff”).

After recognizing the facts as stated in its reasoning based on the evidence of employment, the court below is just in finding that the possession of the land in the dispute of this case by the defendant (Counterclaim Plaintiff; hereinafter referred to as the "defendant") is an independent possession. The judgment below did not err in the misapprehension of legal principles as to autonomous possession or prescriptive acquisition, or in the misapprehension of legal reasoning or the inconsistent reasoning as asserted in the

2. We examine the defendant's grounds of appeal.

A. As to the counterclaim

Where co-owners occupy and use each part of the specified ownership, the form of ownership of co-owners is a sectionally owned co-ownership relationship. The registration of transfer of ownership in the name of other co-owners with respect to the part owned by one of them is a title trust registration (see Supreme Court Decision 96Da56139, Mar. 28, 1997). If a title trust is terminated after the acquisition by prescription is completed and the title holder transferred the title to a title trustee after the completion of the registration of ownership transfer from the title holder to the title trustee, the title truster is a person who acquired ownership after the completion of the acquisition by prescription, and the title truster cannot claim the acquisition by prescription against the title holder (see Supreme Court Decisions 94Da22484, May 9, 1995; 95Da38493, Dec. 8, 1995).

The court below held on August 21, 1984 that the plaintiff purchased a part of 165 square meters from the Busan Dongdong-gu ( Address 1 omitted) 287 square meters from the non-party 1 before partitioning 21, and registered the transfer of shares on the registration convenience. The non-party 2 acquired the remaining part of 122 square meters from the above ( Address 1 omitted) on June 23, 1983 and transferred the transfer of shares on October 21, 1987 to the non-party 3 on the ground that the ownership transfer of the above 122/287 square meters from the non-party 2 was not made on November 2, 1965 to the non-party 2, and the defendant cannot claim that the non-party 165 square meters of the above 165 square meters of co-ownership under the legal principles as to the non-party 2's co-ownership of the above co-ownership under the non-party 1's divided ownership for 168 years.

B. As to the main claim

The court below held that the defendant can seek the removal of the instant facilities, etc. installed without consultation with the plaintiff and the delivery of the instant industrial complex land, which are jointly owned by the plaintiff, since the plaintiff and the defendant still own the remaining shares, since the plaintiff and the defendant own the instant industrial complex land exclusively without consultation with the plaintiff. Since the defendant exclusively occupies and uses the instant industrial complex land without consultation with the plaintiff, the plaintiff is an act of preserving jointly owned property, and thus the plaintiff can seek the removal of the instant facilities, etc. installed against the defendant and the delivery of the instant industrial complex land.

As a matter of determining the specific method for using and making profits from the common property between the co-owners, matters concerning the management of the co-owners should be determined by a majority of shares of the co-owners (Article 265 of the Civil Act). Even if there was no prior consultation on the method of management of the common property with other co-owners, matters concerning the management of the common property can be independently determined. Thus, it is legitimate for co-owners who have a majority of shares to decide to exclusively use and make profits from the specific part of the common property as the method of management of the common property (see, e.g., Supreme Court Decisions 90Da2020, Apr. 12, 1991; 8Da33855, Sept. 24, 191; 200, the contents of the use and profit from the common property should not extend to the extent that it would not reach the majority of the co-owners at the time of completion of the registration of ownership transfer (see, e.g., Supreme Court Decision 95Da5985, supra.

As acknowledged by the court below, the defendant is in a position to acquire the ownership transfer registration from the plaintiff as to the above shares as a result of the completion of the acquisition by prescription for shares 165/287 among the land in the dispute for 20 years or more. Thus, the plaintiff who becomes a minority right holder pursuant to the above legal principles cannot seek the transfer of the land in the dispute and the removal of the part of the ground building against the defendant who becomes a majority right holder.

Nevertheless, the court below erred by misapprehending the legal principles as to the use and profit-making of common property, which ordered the plaintiff to deliver the land in question and remove the building on the ground. Thus, the ground of appeal pointing this out is with merit.

3. Therefore, the part of the lower judgment against the Defendant regarding the principal lawsuit is reversed, and that part of the case is remanded to the lower court. The Defendant’s counterclaim and the Plaintiff’s appeal are dismissed, respectively. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-woo (Presiding Justice)