[1] Requirements for establishing sectional ownership for one building, and meaning of “sectional act” / Whether there is an act of division where the intention of division is objectively indicated that a building to be newly built in the future is a sectioned building through an application for building permission or a contract for sale in lots before completion of a sectioned building (affirmative), and in this case, the time when sectional ownership is established

[2] Whether a person, other than a sectional owner, has a right to the land which became a site of an aggregate building regardless of the ownership of a section for exclusive use from before the sectional ownership is established, subject to the prohibition of separate disposal under Article 20 of the Act on the Ownership and Management of Aggregate Buildings (negative)

[1] Article 1 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 2 subparagraph 6 of the Act on the Ownership and Management of Aggregate Buildings and Article 20 (2) of the same Act

[1] Supreme Court en banc Decision 2010Da71578 Decided January 17, 2013 (Gong2013Sang, 298), Supreme Court Decision 2012Da109538 Decided June 24, 2015 / [2] Supreme Court Decision 2010Da6017 Decided May 27, 2010 (Gong2010Ha, 1265), Supreme Court Decision 201Da12149, 12156 Decided October 24, 2013 (Gong2013Ha, 2105) (Gong2015Da242849 decided September 12, 2017)

Large Shelf Construction Co., Ltd. (Attorney Kim Jong-sik, Counsel for the defendant-appellant)

Industrial Bank of Korea (Law Firm LLC et al., Counsel for the plaintiff-appellant-appellee)

Defendant 1 and two others (Attorney Kim-mno et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2014Na12513, 12520 decided August 21, 2015

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

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

1. In order to establish sectional ownership of one building, there is a separate building from an objective and physical aspect, and there is a separate building part in its structure and use, as well as a physically partitioned building part of one building as the object of sectional ownership. Here, division act is a kind of legal act which, without changing the physical form and quality of the building, intends to divide the specific part of the building into the object of sectional ownership under the legal concept, and is not a special restriction on the time and method, but it is acknowledged if the separate intention of the disposal authority is objectively indicated from an objective point of view. Even before the physical completion of the partitioned building, if the intention of division is objectively indicated that the building will be a divided building, the existence of division act may be recognized, but the structure and form thereof should be completed objectively and physically to the extent that it is recognized as identical to that of the building permit (see, e.g., Supreme Court en banc Decision 2010Da715848, Jan. 17, 2013; Supreme Court en banc Decision 2015Da1638254, Apr. 25, 2015).

Meanwhile, according to Article 20(2) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”), a sectional owner cannot dispose of his/her right to use a site separately from his/her section of exclusive ownership. Since a sectional owner’s right to use a site, which is prohibited from a separate disposition pursuant to the aforementioned provision, is a right that a sectional owner owns the site of a building to own a section of exclusive ownership (Article 2 subparag. 6 of the Condominium Act). Since a sectional owner’s right to use a site is premised on the establishment of sectional ownership (Article 2 subparag. 6 of the Condominium Act). The right that a person, other than a sectional owner, holds against a parcel of land that has become a site of an aggregate building irrespective of the ownership of a section of exclusive ownership before the sectional ownership is established, is not subject to a restriction on the prohibition of separate disposition as stipulated under Article 20 of the Condominium Act (see, e.g., Supreme Court Decisions 201Da6017, May 27, 2010;

2. Review of the reasoning of the first instance judgment as cited by the lower court and the evidence duly admitted reveals the following facts.

A. On October 5, 199, a land-based public corporation obtained approval for the housing construction project plan with the content that the housing construction project plan will be to newly build three row houses with the first underground floor and the fourth floor above the ground level (hereinafter “instant project plan”) on the ground level of 96 households on the land of Jinjin-si Forest ( Address omitted) from the Sinjin-si (hereinafter “instant land”).

B. The instant project plan had been modified several times on May 29, 2004, and its contents were modified to newly construct 3 Dong-dong (101 Dong, 102 Dong, 24 Dong, 103 Dong-dong, 8 Dong-dong) on the instant land on a total of 56 households on May 29, 2004. The said project operator also changed the instant project plan to Gael case (hereinafter “Noel case”); on April 20, 2002, Dang-do Co., Ltd. (hereinafter “Seoul-do”); on December 8, 2006, on April 25, 2007, it was modified to each of the instant project plan (hereinafter “the instant new construction project”).

C. Meanwhile, with respect to the instant land, the registration of ownership transfer under the name of IselK was completed on May 21, 2002, and the registration of ownership transfer was completed on September 16, 2002, the maximum debt amount of KRW 700 million, the obligor Isel case, and the Korean Bank (hereinafter “Korea Bank”) on the establishment of a neighboring mortgage (hereinafter “the right to collateral security”) was completed on September 16, 2002. ② On December 30, 2005, the Korean bank applied for a voluntary auction order on December 30, 2005, and the decision of the commencement of the voluntary auction was completed on November 2, 2006, with the Nonparty’s ownership transfer registration under the name of the Plaintiff, and the Nonparty’s right to collateral security was completed on April 13, 2007, and each of the Nonparty’s 200, 3700,000,000 won (the Nonparty’s voluntary auction order was made on April 13, 20, 20007.).

D. On February 203, 200, ELK acquired the ownership of the instant land and obtained the approval of the change from the Jinjin-gun to the project undertaker of the instant project plan. On February 3, 2003, ELK resumed resumed the instant construction, which had been interrupted without completion of the Housing Site Creation Project. Of the 3 multi-family housing, the construction of the structural frame, such as columns, walls, and ceilings up to the fourth floor above the 103rd ground, and the construction of the structural frame up to the third floor above the 103rd ground was completed, and the construction of the instant land was suspended on April 7, 2006, after the completion of the construction of the instant construction of the 4th floor above the 103rd ground, the construction of the instant land was acquired through the order from the YKKK and the construction of the instant land was suspended on June 3, 2007, which was approved by the project undertaker on June 36, 2007.

E. At present on the instant land, three apartment houses (title omitted) are constructed in accordance with the instant project plan. Of the three apartment houses, 101 and 102 of the said apartment houses are divided into 24 households, and 103 units, 8 households, respectively (hereinafter the above 56 units are referred to as “each of the instant apartment houses,” and the above 3 units of apartment houses are referred to as “each of the instant apartment houses,” and the above 56 units are referred to as “each of the instant apartment houses,” hereinafter collectively referred to as “the instant apartment houses”), the creditor of the development of item, the joint defendant corporation of the first instance trial, the creditor of the development of item, Co., Ltd. (hereinafter referred to as “NT”), on January 16, 2008, each of the instant apartment houses was registered under the provisional disposition prohibiting the disposal of real estate (Seoul District Court Branch Court Decision 2007Kadan5761), and on January 24, 2008.

3. Examining these facts in light of the above legal doctrine and the evidence duly admitted, it is determined as follows.

A. The instant tenement house is scheduled to be composed of 101, 102, and 103, each of the 24 households of the 1st underground floor and 4th underground floor, and the 103 units of the 102 dong and 8th household, and the modification of the project plan was approved accordingly. The construction was suspended on April 7, 2006, and it was resumed on June 15, 2007.

However, even from June 15, 2007, in the case of the 103 unit apartment houses of this case, only six household-building works have been completed from the 3rd floor above the ground level until June 15, 2007, and thus, the structure and form of the building did not reach the construction status of the building to the extent that it is recognized as identical to the contents of the amended project plan or building permit scheduled to be the 1st floor above the ground level and the 4th floor above the ground level. Therefore, in the case of the 103 unit apartment houses of this case, it can be recognized that there was an act of division by objectively indicating the intention to be the 103 unit apartment houses through the application, etc. for approval of change of business plan, etc., even if the 103 unit apartment houses of this case had been objectively written and externally, it is not yet completed as a 1 unit and a sectioned building corresponding to the act of division, and thus,

B. Meanwhile, in the case of the instant row housing, the 101 unit and the 102 unit were completed on April 7, 2007 by Isel case, and the structure and form of the building was constructed to the extent that it is recognized as identical in terms of social norms to the contents of the changed project plan or building permit scheduled to be the first floor and the fourth floor above the ground. Thus, it can be said that there was an aggregate building before April 13, 2007, which was the date of the registration of establishment of the second unit apartment house, and its sectional ownership was established.

However, as the project undertaker of the instant project plan, the right to use the site in ELD case, which acquired the sectional ownership of 101 units of 101 units and 102 units of the instant tenement house, was established prior to the establishment of the sectional ownership, was extinguished on November 2, 2006 by acquiring the instant land and acquiring its ownership. There is no evidence to deem that the ELD case acquired the right to use the instant land from April 13, 2007 until April 13, 2007, which was the date of the establishment registration of the second units of tenement, as the right to use the site.

Since then, the status of the project undertaker in the instant project plan from the ELK, and then the land of this case was acquired on April 13, 2007 as an item-type industry development, along with the above status as the project undertaker in the instant project plan. However, as long as the development of the item-type industry only purchased the instant apartment house and did not acquire sectional ownership due to the completion of the registration of ownership transfer, the ownership that the development of the item-type industry, which was not the sectional owner, acquired as to the land of this case cannot be said to be the right to the site of the building in order to own the section of exclusive ownership as the sectional owner.

Therefore, in such a situation, the act of establishing the second collateral security against the Plaintiff’s Intervenor with respect to the instant land does not contravene the prohibition of separate disposal under Article 20 of the Multi-Family Building Act, regardless of whether the instant land was transferred to the status of a project undertaker under the instant project plan, and the development of an item was allowed to be used as a site for the sectional owner for the sectional owner, or whether the registration of ownership preservation, etc. was completed with respect to the instant multi-family housing in the name thereof (see Supreme Court Decision 2011Da12149, 12156, Oct. 24, 2013).

C. Nevertheless, on the grounds indicated in its reasoning, the lower court determined that the Plaintiff purchased the instant land in the voluntary auction procedure based on the 2nd mortgage, on the premise that (1) it was erroneous for the Plaintiff to have established the sectional ownership on the instant land as an aggregate building in the objective and physical aspect prior to the date of the registration of creation of the 2nd apartment house; and (2) further, determined that the establishment of the 103rd apartment house, including the aforementioned 103rd apartment house, was null and void in violation of Article 20 of the Multi-Family Building Act, and that the establishment of the 2nd apartment mortgage on the instant land was null and void; and on the premise that the Plaintiff could not acquire the ownership of the instant land, the lower court rejected all the Plaintiffs’ primary claim and preliminary claim based on the ownership.

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to the requirements for establishing sectional ownership, sectional owners of the aggregate building Act, right to use site, and prohibition of separate disposition under Article 20 of the Aggregate Buildings Act, which affected the conclusion of the judgment. The ground of appeal

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case 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.

[Attachment] List of Appointeds: Omitted

Justices Park Sang-ok (Presiding Justice)