상속재산공유와 통상의 공유가 병존하는 경우 공유관계의 해소방법 - 일본에서의 학설과 판례를 참조하여 -

The procedure for dividing co-ownership and the procedure for dividing inherited property are different due to the difference in purpose and nature. by the way, when ordinary co-ownership interests and inheritance co-ownership interests coexist in the same real estate, what kind of procedure should be taken, the co-ownership partition procedure and the inheritance property partition procedure, in order to resolve the co-ownership relationship? since there is no provision for coordination of both procedures, problems that are difficult to solve arise. regarding such issues, the Japanese ruling has already made clear in 1975 that the co-ownership should be dissolved by the co-ownership division procedure. in addition, the 2013 ruling imposes an obligation on inherited co-owners who would be paid price damages if they divide the co-ownership property with full price damages. then, the inheritance co-ownership was tentatively attributed to the price compensation. there are various opinions about such Japanese rulings in the theory, but it is considered that they have not shown a method to replace the method of the ruling in 2013. There is not active discussion on such issues in South Korea. however, when referring to the discussion of Japanese case law and theory, it is considered appropriate to dissolve the co-ownership by the co-ownership property division procedure under the current law. then, like Japan, the Supreme Court of South Korea has recently approved a partition of co-ownership property with full price compensation. therefore, the issues raised in Japan's 2013 decision are expected to arise as well. the ultimate solution to such a problem would be to establish a coordinating provision between the co-ownership partition procedure and the inheritance partition procedure.