구분소유자 아닌 대지 공유자와 구분소유자간의 부당이득반환청구 -대법원 2022. 8. 25. 선고 2017다257067 전원합의체 판결을 중심으로-

Abstract

The Supreme Court en banc Decision 2017Da257067(subject case) changed the previous precedent on the issue of claim for return of unjust enrichment between the land co-owner who are not the sectional owner and the sectional owner. In relation to the return of unjust enrichment, the Supreme Court, before the subject case, had taken a position that "each co-owner has the right to use, and take the profits from, the whole of the property jointly owned according to the ratio of his/her share, and thus regardless of whether a sectional owner of the condominium building possesses a land share equivalent the ration of the area for exclusive use held by him/her, he/she is obligated to the return amount proportionate to the size of the area for exclusive use to the land shareholder who is not a sectional owner as unjust enrichment in accordance with the general legal principles on the tenancy in common under the Civil Act". However, the Supreme Court(Supreme Court en banc Decision 2017Da257067 Decided August 25, 2022) established the concept of 'appropriate land share' for the first time and changes the previous precedents. The Supreme Court had taken a position that "as the general legal principles on the tenancy in common under the Civil Act do not apply to the co-ownership of the condominium building, a land shareholder, who is not the sectional owner of the condominium building, can not claim the return of unjust enrichment due to the use and profit of the land against a sectional owner with an appropriate land share. In this study, the Supreme Court's 2017Da257067 en banc decision(subject case) is reviewed from a critical perspective in relation to the return of unjust enrichment between the land co-owner who are not the sectional owner and the sectional owner, and assuming the subject case complementary measures for various legal issues that remain as future tasks are presented.