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(영문) 인천지방법원 2006. 1. 19. 선고 2005노2142 판결

[주택법위반][미간행]

Escopics

Defendant

Appellant. An appellant

Defendant

Prosecutor

Park Byung-kil

Judgment of the lower court

Incheon District Court Decision 2005 High Court Decision 1508 Decided September 9, 2005

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

The defendant, under Article 51 (1) of the Enforcement Decree of the Housing Act, may decide to hold a market until sunrise, and accordingly, since the council of occupants' representatives decided to hold a market until sunrise and held a market until sunrise, the competent Gu office's corrective order is unfair, but the court below found the defendant guilty of the violation of law by misapprehending the legal principles.

2. Determination

(a) Related statutes;

(1) Article 43 of the Housing Act

- Transfer omission

(7) Necessary matters concerning the methods and procedures for notification and request under paragraph (1), the composition, operation and resolution of the council of occupants' representatives under paragraph (3), the affairs of the managing body, alteration of management methods, and the composition, function and operation, etc. of the collective housing management organization (including the autonomous management organization under paragraph (4)) shall be prescribed by Presidential Decree.

- Not more than - Other

(2) Article 51 (Matters to be Resolved by Council of Residents' Representatives)

(1) The council of occupants' representatives shall pass resolutions on the following matters with the consent of a majority of its members:

1. Proposal of the amendment of the management rules of collective housing under Article 44 (2) of the Act (hereinafter referred to as the "management rules") and the enactment and amendment of diverse regulations (excluding the management rules) necessary for the management of collective housing;

2. Determination of the budget for management expenses, determination of the standards for user fees, request of the auditor and settlement of accounts;

3. Standards for the maintenance and operation of electricity, roads, water supply and sewerage, parking lots, gas facilities, heating and cooling facilities, and elevators in a complex;

4. Where self-management is conducted, matters concerning the appointment and dismissal of the personnel of the autonomous management organization;

5. Repair, replacement and improvement of common areas of multi-family housing;

6. Proposal and execution of the remodelling for the collective housing;

7. Establishment or adjustment (limited to the case of accompanying the payment of expenses) of the plan for long-term repairs under Article 47 (1) of the Act (hereinafter referred to as the "long-term repair plan"), and the plan for safety control under Article 49 of the Act (hereinafter referred to as the "safety control plan");

8. Mediation of conflicts of interest between occupants, etc.;

9. Other matters to be determined by the management rules.

(2) omitted.

(3) When the council of occupants' representatives makes a resolution on matters under paragraph (1), it shall not infringe on the rights of persons other than occupants, etc. of the collective housing who have interests in the management of the

- Not more than - Other

(3) Enforcement Decree of the Housing Act Article 57 (Criteria for Management Rules)

(1) The criteria for the management rules to be determined by the Mayor/Do Governor pursuant to Article 44 (1) of the Act shall include the following matters. In such cases, matters that impair the basic rights of persons other than occupants, etc. of multi-family housing shall not

1. Rights and obligations of the occupants, etc. (including the obligations under paragraph (3));

- Not more than - Other

(2) omitted.

(3) Residents, etc. shall obtain consent from the management body when they intend to conduct the following activities:

1. Acts of expanding or removing the structures and equipment of the interior of housing within the scope not falling under each subparagraph of Article 42 (2) of the Act;

2. Obstructing the passage, evacuation and fire fighting by loading goods in the section for common use;

3. Affixing advertisements, signs, or marks to multi-family housing;

4. Acts of damaging communal residence life by raising domestic livestock or using broadcasting facilities, etc.;

5. Installing protruding objects on the balcony, a balcony or the outer wall of collective housing;

6. Entering electric installation rooms, machine rooms, septic tanks, etc.

- Not more than - Other

(4) Management rules for ○○ apartment housing

(A) Article 23

(1) The council of occupants' representatives shall adopt a resolution on other matters prescribed by the management rules pursuant to the provisions of Article 51 (1) 1 through 8 and 9 of the Enforcement Decree of the Housing Act with the consent of a majority of its members:

1. Matters concerning an increase in the management expenses deposit;

2. Criteria for operation of a self-living organization for women, etc. related to the management of collective housing:

3. Other matters on which the management entity requests a resolution for the execution of duties under Article 55 (1) of the Enforcement Decree of the Housing Act.

4. Matters proposed in joint signature by at least 10 occupants, etc.

5. Recommendation of dispute conciliation members pursuant to Article 67 (1) 1 of the Enforcement Decree of the Housing Act.

- Not more than - Other

(B) Article 41 (Criteria for Consent of Managing Body)

(1) Where the managing body gives consent to the acts falling under each subparagraph of Article 57 (3) of the Enforcement Decree of the Housing Act, the standards for consent shall be as prescribed in the following subparagraphs: Provided, That matters prescribed by the rules of the council of occupants' representatives by housing statutes shall be excluded, and if necessary,

1. Matters that obstruct the passage, evacuation and fire fighting of goods on the section for common use;

(a) Consent to an act that has interests or is deemed necessary for occupants, etc. (limited to the extent that such act does not infringe on the rights and interests of shop occupants in a complex);

·Temporary loading of goods on a parking lot or on a road in a complex for the purpose of direct trade in agricultural and fishery products and abagoging association;

· Temporary use of parking lots for any purpose other than parking.

- Not more than - Other

B. Determination

In light of the provisions of each subparagraph of Article 51(1) of the Enforcement Decree of the Housing Act, which provides for the matters to be resolved by the council of occupants' representatives pursuant to Article 43(7) of the Housing Act, the council of occupants' representatives does not stipulate the matters that the council of occupants' representatives may decide to hold the market by sunrise and sunset, but does not stipulate the matters that the council of occupants' representatives may decide to hold the market by sunrise and sunset despite examining Article 23 of the Management Rules of ○○ apartment housing that can determine the matters to be resolved pursuant to Article 51(1)9 of the Enforcement Decree of the Housing Act. However, Article 41 of the Management Rules of Multi-Family Housing, which provides for the act of occupants, etc. who can obtain consent from the management body of occupants, etc. pursuant to Article 57(3) of the Enforcement Decree of the Housing Act, stipulates that a self-employed organization temporarily loads goods on a parking lot or on a road for the purpose of direct dealing, self-consciling, etc.

However, according to the proviso of Article 41 (1) 1 (a) of the above Rules of Multi-Family Housing Management, it is limited to the extent that it does not infringe on the rights and interests of the shop occupants in the complex even if the market is held within the scope of alone as above. Since the above Rules of Multi-Family Housing stipulate the duties of occupants, as stipulated in Article 57 (1) 1 of the Enforcement Decree of the Housing Act, if the above Rules of Multi-Family Housing Management stipulate that the rights and interests of the shop occupants in the complex do not infringe on the rights and interests of the shop occupants in the complex, the above apartment house management rules shall bear the legal or contractual obligations that should not infringe on the rights and interests of the shop occupants in the complex. The rights and interests of

Article 51 (3) of the Enforcement Decree of the Housing Act provides that "When the council of occupants' representatives makes a resolution on the matters under paragraph (1) of this Article, persons other than the occupants, etc. who have an interest in the management of the apartment house concerned shall not infringe on the rights of the persons other than the occupants, etc. of the above apartment complex. The representative of the ○○○ Marart, a commercial building in the above apartment complex, falls under those other than the occupants, etc. of the above apartment complex. As seen above, the non-indicted constitutes a person who has an interest in the management of the apartment complex with the rights and interests protected pursuant to the above rules on the management of the apartment house. Thus, as long as the above rules on the management rules of the apartment house provide for protecting the rights and interests of the above persons, the defendant's act of infringing on the rights and interests of the non-indicted by opening the market within the council of occupants' representatives by going through a resolution of the council of occupants' representatives by the council of occupants' representatives and by the resolution of the council of occupants' representatives, the defendant's assertion that the above order should be justified.

3. Conclusion

Therefore, the defendant's appeal is dismissed. It is so decided as per Disposition.

Judges Kim Su-cheon (Presiding Judge)