Open Decision Ledger · Civil obligations & remedies
Majority co-owner's exclusive use and rent-equivalent unjust enrichment
Supreme Court, July 8, 2021, 2018Da286642 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 손해배상(기)
Official text on the National Law Information Center
Question
May a co-owner holding more than half the shares decide on its own to let a co-owner use and enjoy a specific part of the common property exclusively, does that co-owner thereby make unjust enrichment to a co-owner who holds a share but uses and enjoys nothing, and must the whole appellate judgment be reversed where it dismissed all the selectively joined claims?
Holding
Yes on both points. Deciding how the common property is to be used and enjoyed is a matter of management decided by a majority of shares, so a co-owner holding more than half may decide it alone and may lawfully give a co-owner the exclusive use of a specific part, following Supreme Court Decision 2002Da9738. But such a co-owner makes unjust enrichment to a co-owner who holds a share and yet neither uses nor enjoys the property, because every co-owner may use and enjoy the whole in proportion to that co-owner's share, and must return the amount, rent corresponding to the share. Where an appellate judgment has dismissed all claims that were selectively joined, the whole judgment must be reversed once the appeal is found well founded on one of them.
Points at issue, verbatim
공유자 사이에 공유물을 사용·수익할 구체적인 방법을 정하는 것이 공유자의 지분의 과반수로 결정하여야 하는 공유물의 관리에 관한 사항인지 여부(적극) 및 과반수 지분의 공유자가 공유물의 특정 부분을 배타적으로 사용·수익하기로 정하는 것이 공유물의 관리방법으로서 적법한지 여부(적극)
Unofficial English translation
Whether determining the specific method of using and taking profits from the co-owned property among co-owners is a matter concerning the management of the co-owned property, which is to be decided by a majority of the co-owners' shares (affirmative), and whether an agreement by co-owners holding a majority of the shares to use and take profits from a specific part of the co-owned property exclusively is lawful as a method of managing the co-owned property (affirmative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Form of the test
Elements stated Stated in the decision
공유자 사이에 공유물을 사용·수익할 구체적인 방법을 정하는 것은 공유물의 관리에 관한 사항으로서 공유자의 지분의 과반수로써 결정하여야 할 것이고
Unofficial English translation
determining the specific method of using and taking profits from the co-owned property among co-owners is a matter concerning the management of the co-owned property, and therefore must be decided by a majority of the co-owners' shares, and
Factors
- 공유물의 관리에 관한 사항인지 여부(적극)
- 과반수 지분의 공유자가 공유물의 특정 부분을 배타적으로 사용·수익하기로 정하는 것이 공유물의 관리방법으로서 적법한지 여부(적극)
- 과반수 지분의 공유자가 공유물에 지분은 있으나 사용·수익하지 않고 있는 다른 공유자들에 대하여 그 자의 지분에 상응하는 임료 상당의 부당이득을 하고 있는지 여부(적극)
- 선택적으로 병합된 청구를 모두 기각한 항소심 판결에 대하여 상고심 법원이 어느 하나의 청구에 관한 상고가 이유 있다고 인정하는 경우, 원심판결을 전부 파기하여야 하는지 여부(적극)
Unofficial English translation
• Whether the matter concerns the management of the co-owned property (affirmative)
• Whether an agreement by co-owners holding a majority of the shares to use and take profits from a specific part of the co-owned property exclusively is lawful as a method of managing the co-owned property (affirmative)
• Whether the co-owners holding a majority of the shares are unjustly enriched, as against the other co-owners who have shares in the co-owned property but are not using or taking profits from it, in an amount equivalent to rent corresponding to their shares (affirmative)
• Where, with respect to a judgment of the appellate court dismissing in their entirety claims joined in the alternative, the court of final appeal finds the appeal as to any one of the claims well-founded, whether the judgment of the court below must be reversed in its entirety (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2002. 5. 14. 선고 2002다9738 판결(공2002하, 1399)
Unofficial English translation
Supreme Court Decision 2002Da9738 decided May 14, 2002 (Gong 2002 Ha, 1399)
Decisions referred to
[1] 대법원 2002. 5. 14. 선고 2002다9738 판결(공2002하, 1399), 대법원 2014. 2. 27. 선고 2011다42430 판결(공2014상, 685) / [2] 대법원 1993. 12. 21. 선고 92다46226 전원합의체 판결(공1994상, 484)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
When a tenant occupies the whole premises under a lease, is the rent corresponding to the minority co-owner's share measured by the rent actually agreed with that tenant or by a reasonable rent for that part of the premises?
The remand judgment of the Seoul Central District Court on the return of unjust enrichment would show how the rent-equivalent amount is measured in practice. A later decision on the measure of that amount, or an amendment to Articles 263, 265 and 741 of the Civil Act or to the rule in Supreme Court Decision 92Da46226 on reversing selectively joined claims, would require this entry to be read again.
Cross-family AI independent reading & axis check
6 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 6 of the 8 axes; the readings differed on axis 4 (form of the test), axis 8 (open question and revisit condition).
Axis 4 (Form of the test): Primary “Elements stated” vs Independent “Existing test applied”
The standard form differs. The primary states the requirements as general rules for unjust enrichment and reversal, while the independent applies them to the lease-deposit facts. The holding text is empty, so the rule's framing can be read differently.
과반수 지분의 공유자가 공유물에 지분은 있으나 사용·수익하지 않고 있는 다른 공유자들에 대하여 그 자의 지분에 상응하는 임료 상당의 부당이득을 하고 있는지 여부(적극)Axis 8 (Open question and revisit condition): Primary “When a tenant occupies the whole premises under a lease, is the rent corresponding to the minority co-owner's share measured by the rent actually agreed with that tenant or by a reasonable rent for that part of the premises?” vs Independent “What amount of rent-equivalent unjust enrichment must each defendant return for the tenant's continued possession?”
The primary asks which benchmark, the actual lease rent or a reasonable rent, measures the minority share. The independent asks for the final amount per defendant. The amount depends on the benchmark, but these are different points.
공유자 사이에 공유물을 사용·수익할 구체적인 방법을 정하는 것이 공유자의 지분의 과반수로 결정하여야 하는 공유물의 관리에 관한 사항인지 여부(적극) 및 과반수 지분의 공유자가 공유물의 특정 부분을 배타적으로 사용·수익하기로 정하는 것이 공유물의 관리방법으로서 적법한지 여부(적극)Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul Central District Court, in its judgment of 5 October 2018 (2017Na59132), dismissed all the claims the plaintiff had selectively joined, the claim for damages arising from a tortious act and the claim for return of unjust enrichment. It rejected the tort claim on the reasoning set out in its own judgment, which the Supreme Court's text does not reproduce. It also decided against the plaintiff on the unjust enrichment claim, on the same kind of stated grounds.
Supreme Court standard: The Supreme Court found no error in the rejection of the tort claim. Letting Shinhan Bank use and enjoy the whole premises under the lease, and failing to return the deposit so that the bank refused delivery under its concurrent performance defence, followed the management decided by the holders of a majority of shares and was lawful against the minority co-owner, the plaintiff. On the unjust enrichment claim it held the opposite: Shinhan Bank occupied the premises from 14 March 2014, the day after the lease ended, to 19 August 2015, when the premises were delivered to the plaintiff after it bought the defendants' shares at auction, by exercising the concurrent performance defence, which is to be treated as if the defendants themselves had occupied and exclusively used and enjoyed the premises, so the defendants made unjust enrichment equal to rent corresponding to the plaintiff's share and had to return it, and the judgment dismissing that claim was reversed. Because one of the selectively joined claims had to succeed, the whole judgment was reversed under Supreme Court Decision 92Da46226 and the case was remanded to the Seoul Central District Court.
Distinguishing conditions
- A co-owner holding less than half of the shares, since the power to decide management belongs to a majority of shares.
- A minority co-owner who does use and enjoy the common property, since the unjust enrichment here rests on a loss from being unable to use it at all.
- An appellate judgment that granted one of the selectively joined claims rather than dismissing them all, so that the rule requiring reversal of the whole judgment does not apply.
Record verification notes
Fix the shares each co-owner held at the time the exclusive use was arranged, since the rule turns on a majority of shares, and here the shares were 51.09%, 8.89% and 40.02%. Then set the period of the concurrent performance defence, from the day after the lease ended to the delivery date, against the minority co-owner's inability to use the premises at all, because unjust enrichment is measured over that period only, and note that the occupier was the tenant exercising that defence rather than the co-owners themselves. Finally check that the claims were selectively joined and that the appellate judgment dismissed them all, which is what makes the whole judgment reversible.
From the official text
Points at issue
[1] 공유자 사이에 공유물을 사용·수익할 구체적인 방법을 정하는 것이 공유자의 지분의 과반수로 결정하여야 하는 공유물의 관리에 관한 사항인지 여부(적극) 및 과반수 지분의 공유자가 공유물의 특정 부분을 배타적으로 사용·수익하기로 정하는 것이 공유물의 관리방법으로서 적법한지 여부(적극) / 과반수 지분의 공유자가 공유물에 지분은 있으나 사용·수익하지 않고 있는 다른 공유자들에 대하여 그 자의 지분에 상응하는 임료 상당의 부당이득을 하고 있는지 여부(적극) [2] 선택적으로 병합된 청구를 모두 기각한 항소심 판결에 대하여 상고심 법원이 어느 하나의 청구에 관한 상고가 이유 있다고 인정하는 경우, 원심판결을 전부 파기하여야 하는지 여부(적극)
Unofficial English translation
[1] Whether determining the specific method of using and taking profits from the co-owned property among co-owners is a matter concerning the management of the co-owned property, which is to be decided by a majority of the co-owners' shares (affirmative), and whether an agreement by co-owners holding a majority of the shares to use and take profits from a specific part of the co-owned property exclusively is lawful as a method of managing the co-owned property (affirmative) / Whether the co-owners holding a majority of the shares are unjustly enriched, as against the other co-owners who have shares in the co-owned property but are not using or taking profits from it, in an amount equivalent to rent corresponding to their shares (affirmative) [2] Where, with respect to a judgment of the appellate court dismissing in their entirety claims joined in the alternative, the court of final appeal finds the appeal as to any one of the claims well-founded, whether the judgment of the court below must be reversed in its entirety (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울중앙지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court.
Provisions referred to
[1] 민법 제263조, 제265조, 제741조 [2] 민사소송법 제253조, 제436조
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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