Principle of Prohibition of Separate Disposition with Right to Use Bond Land under Collective Building Act - Supreme Court Decision sentenced on November 9, 2023Da254816

The contents of this study are summarized as follows. First, the Collective Building Act applies to classified buildings built before the enforcement of the Collective Building Act in accordance with the circumstances and reasons of the enactment of the Collective Building Act, the supplementary provisions, and the supplementary provisions of the Real Estate Registration Act. Second, the right to use the land under Article 2, Item 6 of the Collective Building Act includes not only the right to use real rights but also the right to use the land, in that it protects the divided owner and the de facto owner as much as possible to prevent the removal of the exclusive part and the right to use the land. Third, in accordance with the principle of prohibiting the separation of the exclusive portion and the land use right, disposition that ultimately results in the separation of the exclusive portion and the land use right cannot be allowed unless the right to separate ownership is established, and as an exception, the land separated from the exclusive portion becomes a normal land and the previous land use right is extinguished. Fourth, a bona fide third party protected by the principle of prohibiting separate disposition is teleologically limited and reduced in accordance with the legislative purpose of the principle of prohibiting separate disposition, and in addition to the good faith that does not know that the real right is not a collective building site, it requires no negligence. The conclusion of the judgment is valid that the buyer of the apartment house cannot be obliged to remove the exclusive portion of the apartment house or return the unfair gains from the possession and use of the land, considering that they are occupying and using the land based on their legitimate rights by recognizing the right to use the land.