구분소유자가 아닌 대지 공유자와 적정 대지지분을 보유한 구분소유자 간의 부당이득반환 문제 -대법원 2022. 8. 25. 선고 2017다257067 전원합의체 판결-

The issue in this case is whether a land shareholder who is not a sectional owner of a collective building can claim unjust enrichment from the useㆍof the land against a sectional owner with an appropriate land share based on the land share ownership right. Regarding the validity of the subject judgment, first of all, in terms of the specificity of collective buildings, it is reasonable to apply a legal theory unique to collective buildings, considering that there are provisions on the inseparability of the exclusive part and the land use right, including Article 20(1) of the Collective Buildings Act, and that the purpose of the Collective Buildings Act is to ensure that each unit owner acquires an adequate land area so that the exclusive part can be fully provided for the useㆍand profit. In addition, regardless of whether the purpose of the unjust enrichment return system is understood under the unified or non-unified theory, it is reasonable to conclude that a unit owner with an adequate land interest is not obligated to return unjust enrichment to a land shareholder who is not a unit owner. On the other hand, the subject judgment concluded that there is a practical need to deny the unjust enrichment return obligation of a subdivision owner with a fair share of land in order to prevent the creation of a litigation economy. Although this is a valid point, it would have been more realistic and feasible to find a reason for excluding a unit owner with an adequate share of land from the legal relationship of unjust enrichment in the contract of sale for a collective building, as the risk of being involved in an unjust enrichment lawsuit remains for almost all unit owners even if the target judgment is followed. In the end, there are still issues that need to be resolved in the future, such as uneconomy of litigation, difficulty in calculating the appropriate land area, and unified disclosure of the land area and land rights to maintain the unity of the exclusive part and the land use right, but apart from that, the conclusion of the target judgment, which denied the obligation of unjust enrichment return to the land sharer who is not a unit owner of the unit owner with the appropriate land area in consideration of the specificity of the collective building, is reasonable.