집합건물의 구분소유자 아닌 대지 공유자가 전유부분 면적 비율에 상응하는 적정 대지지분을 가진 구분소유자를 상대로 대지의 사용·수익으로 인한 부당이득반환을 청구할 수 있는지 여부

Abstract

The gist of the contention in the subject case pertains to the question of whether a co-owner of the land, who is not a sectional owner of a condominium building, may file a claim for restitution of unjust enrichment from the use and enjoyment of the land against a sectional owner in possession of an interest in the land on which the condominium building is built, which is proportionate to the ratio of the size of the area for exclusive use (hereinafter “proportionate share of the land”) to the total area, based on his or her share in the land. Since the co-owners are entitled to dispose of their own shares and may make use of or take the profits, in proportion to their own shares, from the whole of the article owned jointly (latter part of Article 263 of the Civil Act), a person who exclusively uses and enjoys the jointly owned article is responsible for returning unjust enrichment in proportion to the share of the jointly owned article held by the co-owner regardless of whether the said person has his or her share in the article. In a relationship involving a shared ownership of the land on which a condominium building stands, whether a general legal doctrine regarding the use of and enjoyment of a jointly owned article under the Civil Act likewise applies or whether the application of such legal doctrine should be limited considering the distinctive nature of a condominium building becomes the issue. The Supreme Court’s opinion with regard to this issue has been either one of the following two, -one in favor of applying a general legal doctrine regarding a jointly owned article under the Civil Act to a relationship of co-ownership of the land on which a condominium building is built, under which a sectional owner is obligated to return the amount corresponding to the ownership share owned by the co-owner of the land who is not a sectional owner as unjust enrichment, and the other contending that, unlike a general legal doctrine concerning jointly owned articles under the Civil Act, except for a sectional owner who has the rightful share in the land, the owner of the area for exclusive use, who has no right to use the land, must return the amount equivalent to the lease income that would be accrued from the share of the land which should be registered as the right to the land corresponding to the area for exclusive use (“share in the area of the land for exclusive use”) to the owner of the said share of the area of the land for exclusive use as unjust enrichment. In a relationship involving the co-ownership of the land on which a condominium building is built, the view that a general legal doctrine concerning a jointly owned article under the Civil Act should be likewise applied (so-called “favoring view”) cites as the grounds for its argument that the Act on Ownership and Management of Condominium Buildings does not separately stipulate with regard to the use of and enjoyment of land, and that a legal doctrine that sectional owners may not request the return of unjust enrichment allegedly originated from the difference in the ratio of a share in the land to one another is inapplicable to the relationship involving co-owners of the land who are not sectional owners. On the other hand, the view objecting to the application of a general legal doctrine concerning a jointly owned article under the Civil Act to the relationship involving a co-ownership of the land on which a condominium building stands (so called “objecting view”)　argues that the distinctive nature of the condominium building must be taken into account, in line with the Supreme Court’s finding that the filing of claims among sectional owners for the return of unjust enrichment originated from the difference in the ratio of a share in the land is applicable, and that this view comports with the actual conditions regarding the use of the land. The subject case concluded as follows: (1) In a relationship involving a co-ownership of the land to which a condominium building is attached, a general legal doctrine concerning a jointly owned article under the Civil Act is inapplicable as is, and this is likewise applicable to cases where multiple co-owners of the land include those who are not sectional owners; (2) a sectional owner who is entitled to a proper share of the land has the lawful authority to use and make a profit from the whole of the land according to the prescribed purpose; and (3) therefore, a co-owner of the land who is not a sectional owner may not file a claim for return of unjust enrichment originating from the use and enjoyment of the land against a sectional owner who possesses a proper share of the land based on his or her right of co-ownership of the land. The rationale for such conclusion was as follows: (1) First, each share in the land to which a condominium building is attached is the right to use site, and it is individually united with the corresponding area for exclusive use and is consolidated with one another, and, therefore, one’s rights and duties in relation to his or her share in the land cannot be treated separately from his or her rights and duties over the area for exclusive use; (2) Second, given the intention of the Act on Ownership and Management of Condominium Buildings is that the share in the land that the sectional owner should possess in form of the right to use site must correspond to the proportion of the area for the exclusive use, the sectional owner in possession of the proper share in the land is entitled to the use and enjoyment of the whole of the land according to the prescribed purpose, and therefore, the said sectional owner is not considered to have gained profits without legal cause or infringed on the share of other co-owners of the land, thus unsatisfying the requirements to be considered unjust enrichment; and (3) Third, this view would incentivize the sectional owner to acquire the proper share in the land and prevent legal relationships between the co-owners of the land to which a condominium building is attached and the sectional owners of the said condominium building, from being complicated over the return of unjust enrichment. Furthermore, as explained in the Concurring Opinion in the subject case, barring special circumstances, the co-owner of the land who does not possesses a section of the condominium building may file a claim for return of unjust enrichment, against the sectional owner who does not have a proper share of the land, of the amount calculated in accordance with the proper share of the land that the said sectional owner does not possess, from the lease income amount corresponding to the said co-owner’s co-ownership interest in the land. The subject case put forwarded the concept “proper share in the land” for the first time and settled the previous convoluted position of the Supreme Court regarding the sectional owner’s duty to return unjust enrichment against the co-owner of the land who is not a sectional owner, thereby clarifying and simplifying the future legal relationships of unjust enrichment surrounding the use and enjoyment of the land. Moreover, the significance of the subject case can be found in that it limited the application of a general legal doctrine concerning a jointly owned article under the Civil Act for reasonable regulation of the legal relationships concerning the use and enjoyment of the land to which a condominium building is attached, and established a legal doctrine that specifically pertains to condominium buildings.