구분소유자 아닌 대지 지분권자가 가압류가 설정된 전유부분을 취득한 경우의 문제 -대법원 2025. 3. 27. 선고 2020다277399 판결-

This article examines the validity of Supreme Court Decision 2020Da277399, rendered on March 27, 2025 (hereinafter, "the Decision"), which addressed whether a land-use right is established when a co-owner without sectional ownership acquires an exclusive unit that is subject to a provisional attachment. The Decision held that when a co-owner without sectional ownership acquires an exclusive unit, a land-use right is established, and that such right constitutes an accessory right of the exclusive unit, thereby extending the effect of the provisional attachment on the unit to the land-use right as well. This study analyzes three principal issues: (1) whether a land-use right is established even when the land share is acquired prior to the exclusive unit; (2) whether the prohibitory effect on disposition arising from provisional attachment can preclude the establishment of a land-use right; and (3) whether the effect of a provisional attachment extends to a land-use right established subsequent to the attachment. The findings are as follows. When a co-owner without sectional ownership acquires an exclusive unit, the determination of whether the land share can be converted into a land-use right should be predicated on the existence of an intent to utilize the land share and the exclusive unit as an integrated entity. This necessitates a comprehensive assessment of objective circumstances, including the background or purpose for acquiring the land share, the subsequent circumstances of the acquisition of the exclusive unit, and the utilization status of the land in question. The prohibitive effect of disposition under a provisional attachment does not impede the establishment of a land-use right. Furthermore, even regarding a land-use right established after a provisional attachment, it is reasonable to interpret that the effect of the attachment extends thereto, considering both the legislative intent of the Act on Condominiums to maintain the unity of exclusive units and land, and the purpose of the Civil Execution Act to ensure the effectiveness of auctions. Therefore, the conclusion reached by the Decision is justified. However, questions arise concerning the Decision's assertion that the mere existence of bylaws permitting separate disposition may limit the effect of a provisional attachment.