Claim for Partition of Site for Condominium Buildings: Focused on the Supreme Court Ruling on September 14, 2023, Case No. 2022Da271753

The Site for condominium buildings was shared between those who had a section for exclusive possession in the building and those who did not, and the latter plaintiffs filed a claim for for Partition of the Site and a return of unjust enrichment. The court of first instance disallowed the claim for division by the co-owner in accordance with Article 8 of the ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS and only accepted the claim for return of unjust enrichment. However, the court of second instance and the Supreme Court recognized not only the claim for return of unjust enrichment but also the division method by total value compensation. This court decision can be judged positively in that the basis for the existence of the complex and living relationships can be maintained, and the dispute has finally been resolved. With this decision of the court, the prohibition of claim for partition by co-owner of site pursuant to the above provisions can no longer play a role. This is because the court is not bound by the division method of Article Jointly Owned, and, contrary to academic theory, considers division by total value compensation as a division in kind and is free from the restrictions of Article 269, Paragraph 2 of the Civil Act. In this case, the sectional owners refused to acquire ownership of the Site in question, but the court decided to divide by total value compensation, thereby acquiring the plaintiffs' shares and paying a considerable price for the shares. Since it is unfair to treat the division method by total value compensation as simply a division in kind. In order for the court to decide on this method, it must be subject to restrictions equivalent to splitting the price by official auction in accordance with the purpose of Article 269, Paragraph 2 of the Civil Act. In a case such as this, rather than resolving it as a problem of partition of article jointly owned, it would be desirable to resolve this issue legislatively so that people like the plaintiff can request that the sectional owners purchase their shares.