대지사용권의 분유(分有)와 부당이득의 관계

Abstract

According to the Supreme Court's unanimous decision on August 25, 2022(2017 DA 257067), the general legal principles regarding shared property in civil law cannot be directly applied to the “shared relationship” of collective building land. Therefore, co-owners of divided land, who hold a reasonable share corresponding to the ratio of exclusive parts in the collective building, have a legal authority to use and profit from the entire land according to its intended purpose. As a result, a land co-owner who is not a divided land owner cannot claim unjust enrichment against a divided land owner with a reasonable share based on the land co-owner's share rights. The conclusion of this unanimous decision by the Supreme Court emphasizes the obligation of unjust enrichment for divided landowners based on two factors: (1) the emphasis on the substantive use relationship of land use rights and (2) the economic viability of this conclusion. This perspective appears reasonable.
 The Supreme Court’s viewpoint, as presented in the unanimous decision, assumes the “shared relationship,” which is the typical ownership structure of land use rights in collective buildings. However, it is necessary to examine whether there is a change in legal relationships in cases where non-co-owners divide and separately (or jointly) own rights such as ownership of part of the land, apart from the shared relationship.
 The focus of this paper, the Supreme Court’s decision on November 28, 2019(2017 DA 294608), addresses issues related to unjust enrichment concerning land use rights when a single collective building is situated on multiple separate lots. While acknowledging the legal and economic validity of the unanimous decision, this paper critically analyzes the decision on the obligation of unjust enrichment. It suggests the need for legislative measures to clarify and advance future judgements or legal relationships regarding unjust enrichment in land-use relationships.