[1] The legislative intent of Article 8 of the Act on the Ownership and Management of Aggregate Buildings, which prohibits a claim for partition of a site of an aggregate building

[2] The standard for determining whether a case constitutes “site within the scope necessary for the use of a building” prohibited by Article 8 of the Act on the Ownership and Management of Aggregate Buildings

[3] The case holding that in case where a person who owns a commercial building exclusively uses part of the co-owned land on the underground and a certain part of the co-owned land within a certain scope, all co-owners are bound to jointly use part of the above co-owned land for which no exclusive use by a specific co-owner is allowed, so other co-owners cannot request the above co-owners to request the above co-owners to transfer

[1] The legislative purpose of Article 8 of the Act on the Ownership and Management of Aggregate Buildings, which prohibits a claim for partition of a site of an aggregate building, is to secure the foundation for the existence of an aggregate building, in which individual constituent parts are the object of partitioned ownership, as a single building. The site of an aggregate building is in unity or indivisible with the right to partitioned ownership on the ground, and if the co-ownership based on co-ownership, such right to use the site of an aggregate building, is recognized as a division of co-ownership, such right to use the site of an aggregate building, is likely to lead to failure,

[2] In determining whether a co-owner of a site for an aggregate building falls under a “site within the scope necessary for the use of a building” under Article 8 of the Act on the Ownership and Management of Aggregate Buildings, the legislative purport of the above Article 8 should first be considered. Furthermore, the definition of “site for an aggregate building” under the same Act (see Articles 2 subparag. 5, 3(3), and 4), the part of a claim for partition and the relation of mutual use between the entire site and the whole site can be considered as an organic combination. Meanwhile, with regard to the concept of “use of a building”, the legal relationship between the portion of the land for an aggregate building and the entire site as at the time of the request for partition and the entire site, as well as its past use and anticipated trade relationship, and the impact of the division on the users of an aggregate building or the remaining parts of the land on the utility or economic value of the entire site in the future. Based on this point, the determination of whether the division constitutes a site within the scope necessary for the use of an aggregate building should also be made based on the legal relationship between the entire site and the land use of the site and the site and the entire site.

[3] The case holding that in case where a person who owns a commercial building exclusively uses part of the co-owned land on the underground and a certain part of the co-owned land within a certain scope, all co-owners are bound to jointly use part of the above co-owned land for which no exclusive use by a specific co-owner is allowed, so other co-owners cannot request the above co-owners to transfer the land completely excluding the above owner

[1] Article 8 of the Act on the Ownership and Management of Aggregate Buildings, Article 268 of the Civil Act / [2] Article 8 of the Act on the Ownership and Management of Aggregate Buildings / [3] Articles 263 and 265 of the Civil Act

Plaintiff (Law Firm White, Attorneys Choi Gyeong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and 161 others (Law Firm Squa, Attorneys Jeong Jong-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na10208, 10215 decided October 5, 2005

The part of the judgment of the court below against the plaintiff (Counterclaim defendant) regarding the counterclaim is reversed, and that part of the case is remanded to Seoul High Court. The remaining appeal by the plaintiff (Counterclaim defendant) is dismissed.

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

1. As to the main claim

Article 8 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Act on the Ownership and Management of Aggregate Buildings") provides that "if one building which is the object of partitioned ownership exists on a site, co-owner of the site shall not claim a partition of the site within the extent necessary for the use of the building." The legislative purport of the Act is to secure the foundation for the existence of an aggregate building, in which individual constituent parts are the object of partitioned ownership independently, as a single building. The site of an aggregate building is in unity or indivisible with the right of divided ownership on the ground, and if the co-ownership based on the right of co-ownership is recognized as a co-ownership, such right of use of the site of an aggregate building is caused by failure, and thus, it is prohibited to claim a partition for the protection

Therefore, in determining whether a co-owner of a site for an aggregate building falls under a “site within the scope necessary for the use of a building” under Article 8 of the Act on the Ownership and Management of Aggregate Buildings, the legislative purport of Article 8 should first be considered. Furthermore, the definition of “site for a building” under the Act on the Ownership and Management of Aggregate Buildings (see Articles 2 subparag. 5, 3(3), and 4 of the same Act) and the definition of “use of a building,” and the relation between the partial claim for a partition and the collective use of the entire site, etc. may be considered closely. Meanwhile, with regard to the concept of “use of a building,” the concept of “use of a building,” not only the current status at the time of the request for partition of an aggregate building and the entire site, but also its past use relationship and anticipated trade relationship, and also the impact of the division on the users of an aggregate building, the divided land, and the remaining land, etc., the utility value or economic value of the entire

Based on this point, with respect to whether a building site is within the scope necessary for the use of an aggregate building, the determination shall be made by comprehensively taking into account each location, shape, area, and physical and spatial status of the entire site and the claim for partition, the use and type of use of an aggregate building, the relationship between the use of the part of the claim for partition and the facilities installed on that ground, the legal and private relationship between the part of the claim for partition and the whole site, the relationship between the use of the entire site

Examining the reasoning of the judgment below in light of the aforementioned legal principles, it is justifiable to determine that the division claim of this case is not permissible on the ground that the part of the land claim of this case, which the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) demanded the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) to divide the jointly owned property, constitutes a site within the scope necessary for the use of Jinju Apartment, which is an aggregate building. There is no error in the misapprehension of legal principles as to the prohibition of partition claim under the Act on the Division of Co-Owned Property and the Act on the Ownership and Management of Aggregate Buildings, or in violation of the rules of evidence. The grounds of appeal as to this point are not acceptable.

2. As to the counterclaim

가. 원심판결 이유에 의하면, 원심은 판시 각 증거에 의하여, 라이프주택개발 주식회사는 1984년경 이 사건 토지 11,188.1㎡에 등기부상 지층으로 등재된 ‘진주상가’와 각 집합건물로서 등기부상 아파트 1층 내지 10층 및 지하층으로 등재된 ‘진주아파트’ 제1동, 제2동, 제3동을 각 신축하고, 1986. 7. 24. 이 사건 토지 중 10,239.21/11,188.1 지분을 진주아파트의 대지로 하는 대지권등기를 마친 사실, 진주아파트는 1985년경부터 분양이 시작되었는데, 피고들은 진주아파트 중 구분건물인 각 해당 동호수를 분양받거나 수분양자 등으로부터 매수하는 등 이를 승계 취득하여 소유권이전등기를 한 사실, 위 회사는 각 신축 당시 이 사건 토지 중 원고가 피고들을 상대로 분할을 요구하는 이 사건 분할청구 토지 부분 948.8㎡ 지상에 진주상가, 어린이 놀이터(진주상가 우측 부분), 주차장(진주상가 지상 부분)인 복지 및 부대시설을 설치하는 사업승인을 받아 이를 설치한 사실, 원고는 1991. 1. 28. 진주상가 및 이 사건 토지 중 948.89/11,188.1 지분을 위 회사로부터 매수하여 소유권이전등기를 마치고, 1997. 4. 28.경부터 이 사건 토지 중 진주상가의 지상면적, 썽큰가든, 계단, 경사로 등의 면적을 포함한 이 사건 점유 부분 897.6㎡를 진주아파트의 소유자들이자 이 사건 토지의 공유자들인 피고들 등으로부터 승낙을 받지 아니한 채 독점적으로 점유, 사용하고 있는 사실, 1997. 4. 28.경 이전 이 사건 점유 부분의 현황은, 그 중 진주상가 지상 부분에 화단이 조성되어 개나리 등이 식재되어 있었고, 진주아파트에서 진주상가로 걸어 내려가는 2개의 계단과 스테인리스 난간, 그리고 썽큰가든 부분에는 인공폭포 및 정원이 각 설치되어 있었으며, 진주아파트 및 외부 도로와 연결하기 위한 계단 및 경사로가 설치되어 아파트 주민들의 통행로로 사용되었는데, 원고가 위 일자 무렵 화단을 제거하고 계단 및 담장 등을 손상하는 한편 진주상가 건물 지상 부분에 폐기물 등을 방치하고 철골구조물 및 철판 등을 설치하여 현재까지 그 일부를 철거 및 원상복구를 하지 않고 있는 사실, 원고는 이 사건 토지의 공유자로서 나머지 공유자들인 피고들을 상대로 이 사건 분할청구 토지 부분의 분할을 요구하고 있는 사실 등을 인정한 후, 이 사건 토지의 공유자 중 일인인 원고가 다른 공유자들인 피고들과 아무런 협의를 거치지 아니한 채 그 일부인 이 사건 점유 부분을 독점적으로 사용하고 판시 각 시설물을 설치하는 등 현상을 변경하고도 철거 및 원상복구를 거부하고 있음을 이유로, 원고에게 이 사건 점유 부분의 인도와 아직 존치되고 있는 각 시설물의 철거 및 피고들의 각 공유지분에 상응한 원상회복비용 상당의 지급, 그리고 피고들의 각 공유지분 및 취득기간(양수된 채권의 기간 포함)에 상응하는 임료 상당의 부당이득반환을 명하는 한편, 피고들이 이 사건 토지 중 원고가 점유하는 부분을 제외한 나머지 토지 부분을 독점적으로 점유·사용하였다고 볼 만한 증거가 없다는 이유로 이에 기한 원고의 상계항변을 배척하였다.

B. Examining the reasoning of the lower judgment in comparison with the record, the lower court’s fact-finding as to the counterclaim claim and the lower court’s determination as to the remainder except for the claim for extradition of the occupied portion of the instant case is all justifiable, and there is no error in the misapprehension of legal principles as to the establishment and scope of unjust enrichment or in violation of the rules of evidence.

However, it is difficult to accept the judgment of the court below on the claim for delivery of the part in possession of this case.

In light of each of the above facts duly admitted by the court below, unlike the case of an exclusive possession of common property, in this case, the Plaintiff owned the building on the ground of the underground and a certain scope of the land, so that exclusive use by the Plaintiff is allowed within the scope of the land, and the Plaintiff’s exclusive use is not allowed as to the occupied part of the instant case including the upper space of the building exceeding the scope. The possession of the upper space of the building by Jinju is physically accompanied by the Plaintiff’s exclusive use right, and the Defendants cannot exclusively use the occupied part. Accordingly, the Plaintiff and the Defendants, who are co-owners, are bound to jointly use the part of the instant case.

Therefore, the Defendants, who are not able to exclusively or exclusively occupy, use, and jointly occupy and use the part of the possession of the instant case, are entitled to allow the Plaintiff to jointly use and take profits from the part of the instant case, or claim for performance of the duty of omission, which prevents such use and profit therefrom, or claim for the return of unjust enrichment on the part of the Defendants’ joint use and profit in excess of the Plaintiff’s share ratio, etc., in addition to the claim for damages on the ground of infringement of the Defendants’ joint use and profit, or the claim for the return of unjust enrichment on the part of the Plaintiff’s use and profit in excess of the Plaintiff’s share ratio, the lower court received the Defendant’s request for the delivery. Accordingly, the lower court erred

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff regarding the counterclaim is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)