The method of partition of co-owned property, where it is possible to divide in kind and there is a need to do so, and there is no possibility that the value will be reduced remarkably, but there is no way to prevent any excess or excess of the value of the kind acquired by each co-owner.

According to Article 269 of the Civil Code, when there is a claim for partition of the article jointly owned, the court may order the auction of the article only when it is impossible to divide the article in kind or when the value of the article is likely to be significantly reduced due to the division. Thus, the court shall, in principle, conduct the in-kind division, barring such circumstances as above. It is reasonable to interpret that it is permitted in the form of the in-kind division to allow the co-owners to pay the price of the article in kind and to adjust the excess or the value of the share, and there is no reasonable method of the in-kind division so that the price of the article acquired by each co-owner does not incur any excess or decrease in the value of the share.

Article 269 of the Civil Act

Park Jong-ro, Attorney Kim Tae-sik, Counsel for the defendant-appellant

Attorney Kim Tae-tae et al., Counsel for the defendant-appellant

Busan High Court Decision 88Na7750 delivered on February 14, 1990

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

On the first ground for appeal

In light of the records, the fact-finding of the court below is acceptable, and it cannot be said that there is any error of law such as incomplete deliberation or the rules of evidence. Therefore, the argument is groundless.

With respect to the second ground:

According to the reasoning of the judgment below, the court below ordered the sale price of this case to the above land 1, 2, 3, and 442 listed in the attached list (1) of the judgment of the court below (hereinafter "land of this case") to the plaintiff and the defendants' co-ownership (the plaintiff 3,058 Kim Jong-tae 22,442 shares of this case). Among them, on the ground of 456-1, 123.7 square meters of Masan-dong 456-1, a piece of land which is one land, it is impossible for the defendants to use the above land as part of the above 456-2 square meters of 1st 1st 2nd 72.3 square meters of 2nd 2nd 2nd 243.2nd 2nd 2nd 2nd 2nd 56th 2nd 3rd 3rd 26th 206th 3rd 26th 208th 206th 3rd 3rd 26th 20.

However, in the case of a request for partition of the article jointly owned under Article 269 of the Civil Act, the court can order auction of the article only when it is impossible to divide the article in kind or when the value of the article is likely to decrease substantially due to the division. Thus, in principle, in the case of the article jointly owned in kind, unless there are special circumstances, the court shall make a spot partition, barring the above circumstances. In the case of the article jointly owned in kind, considering the nature, shape, location, use value and the situation of the use of the article and the use value after the actual location of the co-owner's possession, the value of the article subject to partition shall be reasonably determined according to the ratio of the co-owner's share to the co-owner's share. In this case, it is necessary to make it possible to divide the article in kind and there is no possibility that the value of the article might be significantly decreased due to the division. However, if there is no reasonable method to order the auction in kind to do so, it is reasonable to permit the co-owner to pay the part in kind in excess of co-ownership's share.

Therefore, if the court below recognized the share of the plaintiff and the defendant in the co-owned land of this case and the shape, location, and current use of the co-owned land of this case as approved by the court below, the court below should determine the method of partition by examining whether there is a need to divide the land of this case in kind or not due to the in-kind division, not to order the price division, but to determine whether there is any chapters and disadvantages compared with the case of the price division. The court below's failure to reach this point by misunderstanding the method of judicial division of the co-owned property, which affected the judgment, and as such, it is reasonable to point out this point.

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the court below is reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)