[1] The method of dividing the jointly-owned property in a case where the site part of an aggregate building and other land adjoin and the whole land is owned by the owner of a sectioned building and other persons

[2] Whether share ratio of co-owners, which is the standard for partition of co-owned property, can be recognized differently from the entry in the register (affirmative)

[3] The legal nature of a claim and an obligation relationship where multiple co-owners become each group of co-owners and still remain in a manner that remains in the form of co-owners, but the excess or excess according to the share ratio is adjusted in cash

[1] Even if the jointly-owned property originally owned is a large number of real estate, it is reasonable to view that each part after the partition is permitted as a single ownership of each co-owner in kind. If the land part which is the site of an aggregate building is adjacent to the land and the land is owned by the owner of a sectional building and the whole land is jointly owned by the owner of a sectional building and another person, the land part which is the site of an aggregate building and the land part which is the land may be divided in kind. However, if each co-owner does not have a reasonable method to divide in kind, so that the price of the goods acquired by the co-owner does not incur any excess or excess of the value of the goods and the value of the shares, it is allowed to divide in kind between the co-owners in cases where there are certain conditions, such as special circumstances, such as where it is more unreasonable to divide in kind, it is allowed to adjust in kind the excess or excess of the economic value of money between the co-owners in order to divide in kind. In cases where multiple persons share in kind, the remaining co-owners who do not want the division may also be permitted.

[2] In a lawsuit for partition of co-owned property, if the co-owned property is recognized, it shall be ordered to divide according to the ratio of the value according to shares (exchange value) in a reasonable way, such as the co-owned relation or the shape or location of the property which is the object thereof, the situation of use, economic value, etc. Therefore, the criteria for partition of co-owned property should be determined according to the ratio of shares of co-owners. Thus, the waiver of co-owned property right among co-owners can be asserted against

[3] In the partition of co-owned property, where multiple co-owners with different interests in each land after the partition are divided, and still remain co-owners, and one party maintaining the co-ownership relationship is paid the price for excess acquired to the other party to whom the co-ownership relationship is maintained in money, it is reasonable to view that the relationship exists in an indivisible claim and obligation by nature.

[1] Article 269 of the Civil Act / [2] Article 269 of the Civil Act / [3] Articles 269, 409, and 411 of the Civil Act

[1] Supreme Court Decision 90Meu7620 Decided August 28, 1990 (Gong1990, 2015) Supreme Court Decision 91Da2728 Decided November 12, 1991 (Gong192, 102)

Seocho-gu et al. (Law Firm Dong, Attorneys Seo-mo et al., Counsel for the plaintiff-appellant)

Kim Byung-jin et al. (Attorney Kim Jong-jin, Counsel for the plaintiff-appellant)

Seoul Private District Court Decision 94Da17692 delivered on February 10, 1995

1. The judgment of the court of first instance is modified as follows.

2. As to each land listed in the separate sheet No. 2, the land listed in paragraphs 5 and 6 among them shall be jointly owned by the plaintiffs according to each share ratio listed in paragraph 1 of the attached sheet after division No. 4, and the land listed in paragraphs 1, 2, 3, and 4 of the same list of real estate shall be divided according to each share ratio listed in paragraph 2 of the attached sheet after division No. 4. 4.

3. The plaintiffs shall pay to each of the Defendants the amount of KRW 186,943,664 and the amount at the rate of five percent per annum from the day following the date the judgment of this case is finalized to the date of full payment.

4. The costs of the lawsuit shall be borne by the plaintiffs, and the remainder shall be borne by the defendants, respectively, after the combination of the first and second trials for five minutes.

Each land listed in the attached Table 2's real estate list, the land listed in paragraphs 5 and 6 of the same list shall be co-owned by the plaintiffs, and the land listed in paragraphs 1 through 4 of the same list shall be co-owned by the defendants.

The first instance judgment is revoked, and the plaintiffs' claims are dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking account of each entry in Gap evidence 1-1 through 6, Gap evidence 2-2-6, Eul evidence 9-1 through 45, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2, Eul evidence 3, Eul evidence 4, Eul evidence 7-1 through 55, Eul evidence 8-7 through 55, Eul evidence 9-1 through 40, Eul evidence 14-1 through 27, and all the arguments and arguments.

A. The land before the replotting was purchased by nine parties, excluding the Plaintiff Kim Jong-dong 278-1, Jeonyang-dong 278 (hereinafter “former land before the replotting”), and completed the registration under the joint name of the said nine persons on August 25, 1978.

B. The owners of the previous land of the nine owners of the previous land of this case (the owner of the previous land of this case was granted a building permit under the name of the plaintiff Seo-gu, gambry, Seocheon-gu, Seocheon-gu, Seocheon-gu, the maximum number of the land, and the owner of the remaining land as of April 3, 1979, but was added to the owner of the building on April 3, 1979; hereinafter in this case, the owner of the previous land of this case 3420.8 square meters among the previous land of this case prior to the land of this case from Ansan-si on September 13, 1978, the owner of the previous land of this nine owners shall be the site area of 120.62 square meters, the building area of the previous land of this case shall be 4 square meters with 120.62 square meters, the building area of this case shall be 161.72 square meters, the building area of this case, and the building area of this case shall be changed to 181.74.7.7

C. From April 29, 1979 to March 17, 1981, the above building owner sold all the apartment buildings and commercial buildings of this case between April 29, 1979 and April 21, 1982, and completed the first buyer's share transfer registration as to the land before the replotting of this case, such as the entry of the pertinent share in the separate sheet No. 3, as to the land before the replotting of this case in the name of the owner of this case (one of the defendants is the first buyer, and the remainder is all the first buyer and the first buyer purchased the ownership before the purchase from the first buyer and completed the transfer registration of ownership). Ultimately, the owner transferred 3,645/164 shares in the separate sheet No. 3's shares in the name of the owner of the above building (the share indicated as the plaintiff Kim Jong-soo was transferred to Nonparty 1, 1, the owner of the building, and the remaining co-ownership shares were transferred under the name of the plaintiff Kim Jong-il, 6. 27. 168.

D. As part of the urban planning under the Urban Planning Act with respect to the land originally planned prior to the instant land substitution, road facilities with the width of eight meters between South and North Korea of the instant apartment were planned, and thus, the instant apartment was designed to be located between the above urban planning roads among the old land prior to the instant land substitution.

E. However, around April 13, 1978, the non-party Yangyang-si decided the urban planning facilities for the land readjustment project with respect to the whole land zone prior to the above land substitution. On June 2, 1978, on September 26, 1978, the non-party 7 and eight districts designated for the land readjustment project were determined and announced as the land readjustment project district in the name of the Minister of Construction and Transportation on September 26, 1978, the non-party 7 districts including the land in this case were determined and announced as the land readjustment project district in the name of Ansan-si as of December 20, 1978, and the order of restricting construction activities, etc. in the land rearrangement project district including the head of Dong-si as of December 20, 1978 was implemented after the completion of the land substitution plan as the project implementer, and after the completion of the land substitution plan as the land substitution plan, the non-party 1 and the non-party 1 and the non-party 1 and the public notification were made on September 198, 198.

F. In the process of the said land readjustment project, the road facilities of the instant apartment are installed with a 2000 square meters width of 8 meters, which connects the inside of the instant apartment to the said 37 square meters in the shape, and the said land readjustment project plan was established, abutting on the said 4-dong of the instant apartment complex, the said plan was established, and the said 30B block 1,83.8 square meters in the same direction 1,086 square meters, 325 square meters in the 34B block 2, 352.7 square meters in the aggregate, 3898.1 square meters in the 370-dong land in the 37-dong land in the 37-dong land in the shape of 37-dong land in the instant case, and the remaining 31-dong land substitution lot with 31-11,530-2, 3500 square meters in the 37-dong land substitution block, which correspond to 31-2531,5315.

G. After a land substitution disposition becomes final and conclusive, 35B block 3-1 lot with the land listed in Table 2 attached hereto, 34B block 2 lot with the land listed in Attached Table 2, 31B block 2, 31B block 1-1 lot with the land listed in Attached Table 2, 30B block 4. land listed in Attached Table 2, 35B block 3.2 lot with the land listed in Attached Table 2, 35B block 35.2 lot with the land listed in Attached Table 2, 5. land listed in Attached Table 2, and 31B block 1-2 lot with the land listed in Attached Table 2, 6. The land listed in Attached Table 2, 387.4 square meters with the total area of the land for which the land substitution is determined, and each of the land after the above replotting is called the land of this case).

H. After the sale of the apartment in this case and the registration of the transfer of shares in the old land prior to the land substitution in this case, each part of the owners and building owners of the apartment in this case was changed on the basis thereof, and each of the land in this case was registered under the names of the plaintiffs and the defendants as shown in the attached Table 3 of co-ownership shares.

I. On August 1983, the plaintiffs, other than the plaintiff Kim Jong-chul, and the non-party Seo-dae filed a lawsuit against the owner of the apartment of this case at that time as Suwon District Court 83 Gahap1293 on the land reserved for replotting of this case. The defendants of the above lawsuit filed a lawsuit against the owner of the apartment of this case as a counterclaim against the above court 84 Gahap231, which is the defendants of the above lawsuit, that the owner of the above lawsuit can not claim the registration of co-owned property as to the above land reserved for replotting of this case on the ground that the land reserved for replotting of this case's share (the share of the previous land was 5831.494 m2, which is the land reserved for replotting, if calculated based on 3898.1 m2, the land reserved for replotting of this case's land reserved for replotting of this case's land) was sold to the purchaser of this case, but there was no obligation to claim the registration of co-owned property as to the above land reserved of this case.

(j) After a replotting disposition became final and conclusive as above, the plaintiffs filed a lawsuit for partition of co-owned property as to each of the lands of this case against Suwon District Court 90Gahap4641 on October 1990, and the land indicated in [Attachment 2] 5 and 6 on January 30, 192 was owned by only the plaintiffs, and as to the land listed in [Attachment 2] 1 to 4 on the land, the plaintiffs won the order to divide of co-owned property into goods with only the buyers. On December 9, 1993, the appellate court of the above case, Seoul High Court 92Na20639 continued on December 9, 1993, the plaintiffs were not registered as owners at that time among the defendants of this case, and the lawsuit was withdrawn on February 18, 1994, and the defendants did not file a lawsuit for partition of co-owned property as co-owners, and the judgment of the court of first instance was revoked, and the judgment of the court below was dismissed as it was unlawful.

2. Judgment on the existence of the right to claim partition of co-owned property

A. Defendants’ qualifications as parties

According to the evidence No. 1 through No. 6, with respect to the above portion of 72/645 out of the real estate stated in the separate list No. 5 and No. 6 of this case, the above portion was registered in the name of the non-party 2. The defendant Kim Man-do sold 72/645 of the real estate listed in the separate list No. 2 of this case to the non-party 1 and No. 4, and the above portion was registered in the name of the non-party 1 and No. 9645. The defendant Lee Jong-hee did not sell the whole portion of the share in the above portion to the non-party 2, the non-party 1 and the non-party 6. The defendant Lee Jong-hee did not sell the above portion of the non-party 1 and the above portion of the non-party 2's share to the non-party 1 and the above portion of the non-party 2's share to the non-party 60-party 1 and the above portion were sold on May 19, 26.

However, according to the whole purport of evidence Nos. 1-1 through 6, evidence Nos. 2 and 3, and the whole purport of oral argument, since the non-party Lee Jong-dong died on June 16, 1991 and the defendant Yoon-dong inherited the deceased's property solely through consultation and division, the order of priority is the owner of the above deceased's property. As for the defendant Kim Jong-hee, Lee Man-hee, and Yu-hee, the plaintiffs' right to claim a partition of co-owned property from the Suwon District Court on September 28, 1990, before the above sale disposition was made, the above defendants' right to claim a provisional disposition against the above defendants as the right to preserve the co-owned property, and against the defendant Kim Jong-gu, the right to claim a provisional disposition against the above defendants' disposal of the co-owned property cannot be acknowledged. Thus, the defendants' right to claim a provisional disposition against the above defendant from the Suwon District Court on August 11, 1983, the above decision of prohibition of disposal of the co-owned property.

B. The occurrence of the claim for partition of the article jointly owned

According to the above facts, each of the lands in this case is presumed to be jointly owned by the plaintiffs and the defendants in their respective shares in the separate sheet of co-owned shares in the separate sheet of co-ownership in the separate sheet of the separate sheet of the separate sheet of the separate sheet of the co-owned shares in the separate sheet of the separate sheet of the separate sheet of the land in this case. Since it is apparent in the previous purport of pleading

C. Determination as to the defendants' defense

(1) Claim on the ground of prohibition of re-instigation, etc.

The Defendants filed a lawsuit identical to the instant case with the Suwon District Court 90Da4641 and Seoul High Court 92Na20639 against the Defendants from among the Defendants, and subsequently withdrawn the lawsuit against the said Defendants after the final judgment of the first instance was rendered. As such, the Defendants again filed a lawsuit against the said Defendants with the same content, the instant lawsuit against the said five Defendants shall be dismissed on the ground that the lawsuit against the said Defendants cannot be filed again, and as such, the instant lawsuit against the said Defendants is unlawful, since the lawsuit against the said five Defendants cannot be maintained unlawfully and thus, they asserted that the instant lawsuit against the said Defendants against all of the remaining Defendants is unlawful.

However, in a case where a lawsuit is terminated without taking effect after a final judgment has been rendered on the merits, the prohibition of re-instigation of a lawsuit is purported at a demand for public interest in order to prevent a lawsuit at the same time by imposing sanctions on the acceptance of the final judgment of the court, and at the same time, at the same time the final judgment of the court was rendered. As seen earlier, even though there was a final judgment of the first instance court, in a case where the appellate court revoked the judgment of the first instance on the merits and rendered a judgment dismissing the lawsuit in the appellate court after withdrawing the lawsuit against some Defendants due to mistake by the plaintiffs, the judgment of the first instance on the merits has no merit in the final judgment. Even if this is not so, the plaintiffs did not withdraw the lawsuit for the purpose of nullifying the above first instance judgment, but it cannot be deemed that the lawsuit

(2) The plaintiffs' assertion that the registration of shares is invalid

The Defendants, in light of the principle of equity in the sale contract of the above apartment lot No. 2, the owners of the above apartment lot No. 2 were entitled to the order for the execution of the land lot No. 7 on Jan. 3, 197 to purchase the above apartment lot No. 2, which was sold by the building owner of the above apartment lot No. 3, and the land No. 2, the owners of the above apartment lot No. 3 were allowed to purchase the above apartment lot No. 8, and the remaining part of the apartment lot No. 2, which was not included in the first owner of the apartment lot No. 4 after the cancellation of the sale contract of the above apartment lot No. 2. The owners of the above apartment lot No. 3, which was the owner of the above apartment lot No. 4, and the remaining part of the apartment lot No. 8, which was the owner of the above apartment lot No. 6, should be the owner of the above apartment lot No. 9720, the building permit of the above apartment lot No. 6.

The Plaintiffs asserted that the above assertion by the Defendants is not only different from the facts, but also as alleged in the above Suwon District Court Decision 84Gahap231, which cannot be accepted in light of the res judicata effect of the above judgment.

Therefore, as to whether the above assertion by the Defendants conflict with the res judicata effect of the judgment of Suwon District Court 84 Ga231, the Suwon District Court 84 Gahap231 (Counterclaim in the case of Suwon District Court 83 Gahap1293), and as to whether the above assertion by the Defendants contradicts the res judicata effect of the judgment of Suwon District Court 84 Kawon District Court 84 Gahap231 (Counterclaim in the case of the case of the case of the above 83Gahap1293), the parties to the above lawsuit, at that time, are the owners of the apartment of this case who are the parties to the above lawsuit, may recognize that the owners of the above apartment of this case sold the shares of the previous land in the amount of the land prior to the replotting in the process of the registration of the transfer of shares to the buyers of the land of this case which can be 3420 Gam8,000, which is the site area under the building permission, and thus, the Defendants' right to claim for the registration of ownership invalidity is not unlawful.

Furthermore, according to the above assertion by the Defendants, the building owner added three owners after the building permit of this case, and the road planning planned to move out to the outermost of the apartment site of this case was altered to the center of the apartment site of this case as alleged by the Defendants. According to the evidence No. 10, it can be acknowledged that the building owner cancelled the sales contract for the part of the previous land of this case before the land of this case and then purchased it again to the owners of this case. However, according to the evidence No. 10, it is hard to recognize that the above construction owner's first sale of the apartment land of this case to the owners of this case 19 to the owners of this case and 2 of this case's first sale of the above apartment lot of this case 9 to the owners of this case's first sale of the apartment lot of this case 5 to the owners of this case, it is hard to recognize that the total of the land of this case 9 to the owners of the above apartment lot of this case 9 to the owners of this case's new sale of the apartment lot of this case 46.

(3) The plaintiffs' share registration was made by title trust.

Even if the plaintiffs' share registration on each of the lands of this case is valid, the defendants asserted that the plaintiff's claim for partition of co-owned property of this case is unfair since the defendants' claim for partition of co-owned property of this case is justified, since the plaintiff's claim for partition of co-owned property of this case is based on the statement of preparatory document dated October 20, 1994.

However, the reasons alleged above by the Defendants alone are that the shares of 3420.88 square meters, which are the horizontal number of the plaintiffs' shares in the building permit, belong to the defendants, and cannot be viewed as the trust of trust from the defendants, and there is no other evidence to acknowledge it. Thus, the defendants' assertion is without merit.

(4) Claim on the prohibition of partition of co-owned property on an aggregate building site

The defendants asserted that even if the plaintiffs are legitimate co-ownership owners of each of the lands of this case, since each of the lands of this case is the site of the apartment building of this case, it is impossible to claim partition of co-owned property pursuant to Article 8

According to Article 8 of the above Act, "if one building, to which the object of sectional ownership belongs, exists on the site, co-owners of the site may not demand partition of the site within the extent necessary for the use of the building," and even according to the above provision itself, with respect to the co-ownership of the owner of a partitioned building and the land owned by other persons, only the part within the extent necessary for the use of the condominium can not be divided, and other land can be divided.

Therefore, according to the whole purport of the statement and pleading No. 5, Gap evidence No. 8-3, 5, and Eul evidence No. 14-13, 17 among each land of this case is used as the site of this case, but the land stated in [Attachment No. 2] No. 5 and 6 is left away from the site after the completion of this case's apartment, and there is no dispute about co-ownership between the plaintiffs and owners of this case's apartment, and the owner of this case's land and the owner of this case's apartment lot No. 27,00,00,000, which are the land of this case's lot No. 27,00 and No. 14.

3. Criteria for partition of co-owned property;

In a lawsuit for partition of co-owned property, if the right to claim partition of co-owned property is recognized, it shall be ordered to divide according to the ratio of the value according to shares (exchange value) by a reasonable method, comprehensively taking into account all the circumstances, such as co-ownership relation or the shape, location, utilization situation, economic value, etc. of the objects thereof. Thus, the criteria for

Furthermore, according to the facts acknowledged as above, the plaintiffs' share in each of the lands of this case is 2670.836/665, and the aggregate of the shares of the defendants is 3974.164/645. However, the plaintiffs asserted only 2267.869/645 shares in each of the lands of this case with the share in the claim for partition of co-owned property of this case and express their intent to recognize it as the defendants' share in this case (refer to the partial correction and supplement application for the cause of claim of May 14, 1994). Since the waiver of co-owned share in this case can claim against the other party without the share transfer registration due to the carbon of co-ownership, the share in co-owned property of this case as the basis for co-owned property of this case is the sum of shares of plaintiffs = the defendants' share = 69/69/64547.3746/1645.65.

4. Method of partition of the article jointly owned;

A. Location, use, and price of the land of this case

The following facts are either in dispute between the parties or in accordance with Gap evidence No. 5, Gap evidence No. 8-2, 3, 4, 5, Eul evidence No. 8-64 and 65, and there are no counter-proofs.

(1) Of each of the instant lands, the land indicated in Section 1, 2, 3, and 4 of the attached Table 2 is being used as the site for the instant four apartment buildings, and the land indicated in Sections 5 and 6 of the same Table is being used directly by the Defendants, under the state of the site, by leasing the land to a person with poor name, etc., and is being recovered at the time of the instant lawsuit and being installed as the parking lot and children’s playgrounds, etc. of the apartment.

(2) The lands listed in paragraphs 1, 2, 3, and 4 of the same list are adjoining to the road of eight meters wide from each apartment complex, and the lands listed in Paragraph 5 of the same list are connected to the land listed in Paragraph 1 of the same list, which is located on the land listed in Paragraph 1 of the same list. The lands listed in Paragraph 6 of the same list are connected to the road of six meters wide to the northwest. The land listed in Paragraph 3 of the same list is connected to the road of eight meters wide from the southwest and south, while the land is connected to the land listed in Paragraph 3 of the same list. The market price of each of the instant lands is 862,000 won per square meter without any price difference (the fact that there is no dispute).

(b) Markets:

Even if the building site is partitioned in kind, there is no possibility that the value of the building site might be reduced remarkably due to the division. However, if there is no reasonable method to divide the price of the building site acquired by each co-owner in kind with an order of auction to prevent any excess or excess of the value of the building site, it is allowed to adjust the economic value between the co-owners in kind and divide the price into one in kind. If the building site is divided in kind with an article owned by several people, the remaining part of the building site is allowed to be divided into the co-owners within the limit of the share of the co-owners and the remaining part of the building site to be divided into the above 4 lots can not be seen as co-owners, and even if the building site is divided in kind, the above list of the apartment site is not owned by the Defendants in the same way as the above 4 lots of land and the apartment site is not owned by the Defendants in the same way as the above 4 lots of land in the same way as the above list of the apartment site in lot in the same way as the above 2 lots of the above.

Therefore, the division of each of the lands of this case is the co-ownership of the Defendants, who are apartment owners, of the lands listed in the attached Tables 1, 2, 3, and 4, which are the existing apartment lots. The lands listed in the attached Tables 5 and 6, which are owned by the Plaintiffs. Accordingly, with respect to the excess amount that the Plaintiffs gain in excess of the economic value according to their share ratio, it would be the most reasonable way to divide it by the method of adjusting the excess or excess by paying the price to the Defendants in cash

(c) Amount of value compensation;

According to the above facts, the plaintiffs' co-ownership as the criteria for filing a partition of co-owned land of this case is 2267.869/645 in total, and since the market price of each land of this case is the same as the market price of each land of this case, the plaintiffs should have to have to have to have to have to have to have to have to have to have to have to have to be paid to the plaintiffs based on the total area of each land of this case of this case (3887.4 x 2267.869/645). As a result of the above division, the plaintiffs acquired in kind a total of 1543.6 m2 m2 1543.872 m2 m2 (1543.66-1326.728) in proportion to the size of each land of this case as stated in attached Tables 2 and 5, 1543.86 m286 m206 m286.6286

However, as in the case in the partition of co-owned property, where multiple co-owners who have an interest in each land after partition agree with each other, and still remain co-owners and either party who maintains the co-ownership relationship is paid the price for the portion acquired in excess in cash to the other party to whom the co-ownership relationship is maintained in order to adjust the excess or excess of the economic value, it is reasonable to view that the relationship exists in an indivisible claim and obligation by nature. Furthermore, from the perspective of fairness, from the day following the day when the judgment of this case becomes final to the day when the decision of this case is completed

5. Conclusion

Therefore, with respect to each of the lands of this case, the land listed in the attached Tables 5 and 6 shall be jointly owned by the plaintiffs according to each share ratio listed in the attached Tables 1, 2, 3, and 4 after the division of the attached Table 4, and the land listed in the attached Tables 1, 2, 3, and 4 shall be divided according to each share ratio listed in paragraph (2) of the attached Table after the division of the attached Table 4, and the plaintiffs shall be liable to pay to each of the defendants the amount of money in excess or excess after the division of the attached Table 4, and the amount of money in proportion to five percent per annum under the Civil Act from the day following the date when the judgment of this case became final to the full payment date. Since the judgment of the first instance is unfair in conclusion, it is so unfair as to accept part of the appeal by the defendants, and the judgment of the first instance shall be modified as to the bearing of litigation costs as ordered by the attached Table 95, 96, 89, 92 and 93 of the Civil Procedure Act [Attachment].

Judges Lee Dong-young (Presiding Judge)