공유물분할소송에서 조정절차에 회부되어 성립된조정에 의한 물권변동에 관한 검토- 대법원 2013.11.21. 선고 2011두1917 전원합의체 판결을 중심으로 -

Abstract

It is said that the majority opinion of this incident Supreme Courtjudgment cannot give the same effect as the irrevocable judgment of thedivision in kind which the court was applied and was defined inconsideration of all the situations about an incident since the civil-affairsadjustment to partition did not have a place essentially different fromdivision of the common property by deliberations of the party concerned. Even if adjustment is materialized by concluding deliberations of thedivision in kind about the land which part-owners own jointly between theprocedure of civil-affairs adjustment, and writing the agreement in aprotocol, Share relations are abolished instancy like the case of thepartition by trial only under such a situation, and it will be said that thenew legal relation accompanying the deliberations is not founded by eachpart-owners. When part-owners talked, after finishing the subdivision-of-a-lot procedureof land, it is said that the ownership over the portion will be acquired forthe first time by inheriting other part-owners' share about the portionmade to carry out by each individual ownership, and finishing registration. Such judgment is appropriate. It will be considered that withdrawal of a lawsuit is if the determinationwhich send to adjustment the incident which a lawsuit is continuing, andadjustment is materialized, or is changed to adjustment is decided. A lawsuit and adjustment are treated in the special incident. Therefore, supposing it is sent to adjustment procedure and adjustment is materializedas it is, they are the Prozessgegenstand in that adjustment, and partition. A writer opposes to the opposite opinion of this incident judicial precedentwhere the Prozessgegenstand of a lawsuit is the same.