2014Da65700 Co-owned property partition, etc.

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Seoul High Court Decision 2013Na54743 Decided August 20, 2014

June 9, 2016

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

Judgment ex officio is made.

1. According to the reasoning of the judgment below, the land of this case was divided into the land of this case, which is about 20 meters in vertical length and about 30 meters in horizontal shape, in which the vertical length is about 30 meters in horizontal length. The court below divided the land of this case into two parts in the direction of 331 meters in size each, in the direction of 331 meters in size after division, and divided into one part [31 meters in the original part] and the remaining part (331 meters in the original part) after dividing the land of this case into the plaintiff. The court below divided the land of this case from auction to distribute the remaining amount after deducting auction expenses from auction expenses to the defendants at the ratio of 1/2 per annum.

2. However, according to the evidence and the record, such as evidence as evidence No. 1, No. 2, No. 7, and No. 8, and the record, even if the part of 12 square meters of the instant land was divided and registered as a subdivision was completed during the proceeding of the first instance trial, the lower court can find the fact that the entire land of this case is subject to partition, without passing it. It is clear that the part of a divided 12 meters of square meters is excluded from the co-ownership relation between the Plaintiff and the Defendants. Even if the co-ownership relation is maintained, it is sufficient that the lower court would have selected another method of partition in accordance with the circumstance or purpose of division, location of the divided land, the use of the divided land after division, etc.

Therefore, the lower court should have deliberated on the subject matter and method of partition by examining the details of subdivision, ownership change, use situation after subdivision, etc. of part of the land during litigation without seeking the Plaintiff. Nevertheless, the lower court did not reach such determination by misapprehending the legal doctrine on the subject matter and method of partition of co-owned property, thereby failing to exhaust all necessary deliberations.

On the other hand, the lower court did not waive the part of the lower judgment’s claim for return of unjust enrichment, on the premise of the judgment as to partition of co-owned property, which ought to be reversed.

3. Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Park Byung-hee

Justices Kim Jae-han

Chief Justice Kim Jong-il