Plaintiff (Attorney Lee In-bok et al., Counsel for plaintiff-appellant)

Defendant 1 and two others (Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Defendant 4 and 24

September 29, 2006

Daegu District Court Decision 2004Gahap506 Delivered on November 4, 2005

1. Of the judgment of the court of first instance, the part ordering a partition of co-owned property as to the building listed in the attached Table No. 2, is revoked, and the plaintiff's claim corresponding

2. The remaining appeals by Defendant 1, 2, and 3 are dismissed.

3. Of the total litigation costs, 50% is borne by the Plaintiff, and 50% is borne by the Defendants, respectively.

1. Purport of claim

A. Defendant 1 shall implement the procedure for registration of cancellation of ownership transfer registration with respect to shares of 537/274,00 of co-owners in 274/100 of shares of 1074/100 of shares of 274/274,00 of shares of each co-owner in the real estate register No. 28,29 of the real estate register No. 1 of the attached Table No. 1 of

B. The building stated in paragraph (2) of the attached list of the instant site and the real estate (hereinafter “instant building”) is sold to each auction and the amount remaining after deducting the auction cost from the price is deducted shall be distributed to the Plaintiff and the Defendants in each share ratio indicated in the attached list of the land and the building shares.

2. Purport of appeal

In the judgment of the court of first instance, the part ordering the division of co-ownership of the instant site and building shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

1. Scope of the deliberation of the political party;

In addition, the plaintiff sought a partition of co-owned property as to the site and building in the first instance court by seeking the procedure for cancellation of ownership transfer registration as to partial shares among the site and building in this case against the defendants, and sought a partition of co-owned property as to the site and building in this case, and the plaintiff's claim was accepted in the first instance court. Since the defendant 1, 2, and 3 only filed an appeal as to the part ordering the partition of co-owned property as to the site and building in this case among the judgment of the first instance,

2. Facts of recognition;

[Ground of recognition] Facts without dispute, Gap evidence 1 to 37, Gap evidence 2-1 to 3, Gap evidence 3-1 to 4, Gap evidence 4, 5-1 to 2, each of the statements, and the purport of the whole pleadings

A. As to the instant site and building, each co-ownership transfer registration has been made in the name of the Plaintiff, Nonparty 3, 4, and Defendants (excluding Defendants 8, 9, 10, 17, 18, 19, 20, 21, and 22) as described in the separate sheet of land and shares in the building site and building (Provided, That as seen thereafter, each co-ownership of Defendant 13, 15, and 13 as to the instant site and the co-ownership of Defendant 13 as to the instant building are mistakenly stated).

B. On December 25, 200, the non-party 3 died and jointly succeeded to the property of the non-party 8, the defendant 9, and the non-party 10, who are his wife. The non-party 4 died on June 14, 2002 and jointly succeeded to the property of the non-party 18, 19, 20, 21, and 22, who are his wife and his wife, the non-party 17, the non-party 17, and the non-party 18, 19, 20, 21, and 22, which are his wife, thereby jointly succeeding to the non-party 4’s property, each co-ownership of the land

C. As to the site of this case, although the co-ownership shares of Defendant 15 and 1, recorded at one hundred and twenty-six (137,000 shares of co-owner) are stated in the closed registry as "one half of 1,074, and defendant 15 and 1, respectively," the above Defendants' co-ownership shares are 1,074/137,00 x 1/2 x 1/2 x 268.5/137,00 x 1/2 267,000 x 268.5/137,000 in the new registry, it is erroneous in the calculation in the new registry as to each of the 28,294,000 shares were stated in the 1,074/274,00 shares of each of the 274,000 shares, and the co-ownership shares of Defendant 13 were stated in the above closed registry as "one-half of 1,071306/1,7046

D. Meanwhile, with respect to the instant building, where the size of the building on the first floor is shared as a part of the closed registry, Defendant 13’s co-ownership was erroneously stated as 24.96/106 but 24.968/1091, while Defendant 13’s co-ownership was erroneously stated as 24.96/3 of the total size of the building. Defendant 13’s co-ownership share in the instant building was 24.96/3, while Defendant 13’s co-ownership was recorded as 24.968/3, as stated in the closed registry in the process of transferring the building into the new registry, while it was recorded as 24.968/3 of the aforementioned erroneous molecule’s share in the instant building (0.08/3415.83).

E. The Plaintiff and the Defendants did not reach an agreement on the method of dividing the instant site.

3. Judgment as to the claim for partition of co-owned property as to the site of this case

A. Claim for partition of co-owned property

According to the above facts of recognition, the Plaintiff, one of the co-owners of the instant site, may claim the division of the instant site against the Defendants, who are the remaining co-owners.

(b) Method of partition;

Since the building of this case was constructed on the site of this case, the method of partition of the site of this case should be determined by taking into account the ownership relation of the building of this case. As seen thereafter, among the buildings of this case, the underground floors of this case are specifically owned by Defendants 2, 3, 2, and 3, and Defendant 1 and 2, and the first floor is in the sectionally owned co-ownership relation between the Plaintiff and the remaining Defendants. However, in the case of the first floor, the ownership relation of the building of this case is very complicated because the number of co-owners and each co-owner's share ratio is too small.

In addition, in light of the location, area, structure, purpose of use, surrounding road situation, actual use situation, etc. of the site of this case recognized by the evidence and the overall purport of pleadings, it is deemed practically impossible to divide the site of this case into goods.

Meanwhile, it can be seen that the instant building site belongs to some of the co-owners of the instant building, and the remaining co-owners are aware of the way to liquidate cash. However, since the Plaintiff and the Defendants are not only many, but also their interests are very complicated to determine co-owners who own the instant building site, and it is not easy to compute the amount to be settled accordingly, it is reasonable to divide the instant building site into co-owners by auction as it is practically impossible to divide the jointly-owned property by this method.

4. Judgment on the claim for partition of co-owned property as to the building of this case

A. The parties' assertion

With respect to the Plaintiff’s filing of partition by asserting that the instant building was owned by the Plaintiff and the Defendants, the Defendants 1, 2, and 3 specified the underground floor among the instant building by Defendants 2, 3, 2, and 3 as well as Defendant 1, and 2. The first floor is in the sectionally owned co-ownership relationship between the Plaintiff and the remaining Defendants, and thus, the instant building is not jointly owned.

B. Determination

(1) Legal principle of sectionally owned co-ownership relationship

In a case where two or more persons agree to divide ownership among one building, the location and area of which are specified and independent for structure and use, and the registration is made in proportion to the area of each sectional ownership for convenience, the so-called sectionally owned co-ownership relation between co-owners constitutes a mutually owned co-ownership relation (see Supreme Court Order 2000Ma2633, Jun. 15, 2001). If the specific part is entirely transferred and the co-ownership registration is completed accordingly, the mutually owned title trust relation between the first transferor and the last transferee is established (see Supreme Court Decision 95Da40939, Oct. 25, 1996). In such a case, if a mutual title trust relation exists, the owner of a specific part of the object can not file a claim against the person holding a mutual ownership registration for the cancellation of a co-ownership trust relation based on the cancellation of the co-ownership registration procedure (see Supreme Court Order 200Ma2633, Oct. 25, 1996).

(2) Facts of recognition

[Ground of recognition] Facts without dispute, Gap evidence 1 to 37, Gap evidence 2-1 to 3, Gap evidence 3-1 to 4, Gap evidence 4, 5-1 to 2, each of the statements, and the purport of the whole pleadings

(A) The instant site was owned by Nonparty 5, and Nonparty 1 constructed the instant building, which is a shopping mall on the ground around March 30, 1987, and the first floor was divided into 64 stores and sold in lots, and the second and third floors were sold separately.

(B) As above, Nonparty 1 did not sell or sell the instant building by dividing it, but did not register it as a sectioned, and completed the registration of ownership transfer with respect to co-owned shares of the ratio equivalent to the total size of the building, among the total size of the building, to buyers or buyers. However, in the case of buyers of the first floor, Nonparty 1’s co-owned shares of the ratio equivalent to the unit size among the total size of the building on the register of the registry, as well as the total size of the sales facilities, are also indicated in the overall title. In the case of underground floors, the second floor, and the third floor, the share of the ratio equivalent to the unit size among the total size of the building is also indicated in the overall title. In addition, in addition to the co-owned shares of the ratio equivalent to the area of underground floors or the area of the second and the third floor, it is also indicated that “the entire unit of the ice rink” or “the second floor bowling and the sub-section 1091.06 square meters, the 3rd floor and the manager accommodation

(C) The purchaser of the first floor shop of the building of this case has used the part that he purchased in lots in a state where the external possession part is not clearly revealed, and the purchaser of the underground floor and the second floor and the third floor have used only each underground floor, the second floor, and the third floor without using the part of the first floor. The above specific part has been transferred before and the co-ownership registration has been completed accordingly, and the co-ownership registration has been completed as to the building of this case as shown in the separate sheet of shares in the building of this case. At present, among the buildings of this case, the underground floor of this case is currently used by the defendant 2, the third, the second, and the third floor of this case are specifically specified by the defendant 1 and the second, and the plaintiff and the second, the second floor are used by the defendants.

(3) Determination

According to the above facts, when Nonparty 1 newly constructed the instant building and then sold or sold it, the number of buyers of the first floor among the instant building is specified and owned by the buyers of the first floor. The underground floor is divided ownership by the purchaser of the underground floor, the second and third floors, and the purchaser of the second and third floors, respectively. The mutual title trust relationship between the purchaser of the second and third floors was established to register the co-ownership share in proportion to the area of each sectional ownership for convenience. Since the specific part was transferred before and the co-ownership share registration was completed accordingly, the mutual title trust relationship was established between the Plaintiff and the Defendants, which are the last transferee of the specific part, and the mutual title trust relationship was established between the Plaintiff and the Defendants. Thus, the Plaintiff’s claim for partition on the premise that the instant building was jointly owned is not reasonable.

5. Conclusion

Therefore, among the plaintiff's claim for partition of co-owned property of this case, the part concerning the land of this case concerning the co-owned property of this case shall be ordered to divide the co-owned property by auction, and the claim for partition of co-owned property as to the building of this case shall be dismissed as there is no reason. The judgment of the court of first instance shall be dismissed as there is no reason, and since the judgment of the court of first instance is partially unfair, part of the appeal by the defendant 1, 2, and 3 is accepted, and the part of the judgment of the court of first instance ordering the partition of co-owned property of this case

[List of Real Estate, List of Ownership of Land, List of Ownership of Ownership of Land, and List of Ownership of Building]

Judges Kim Chang-soo (Presiding Judge)