[가처분이의][공2003.2.15.(172),506]
[1] Whether a buyer or a transferee of a shop designated by type of business in a commercial building has the right to claim the prohibition of business of the same type of business if the buyer or transferee of the position of the shop violates the agreement on the restriction of business type as stipulated in the sales contract (affirmative), and whether the buyer or transferee of the shop has the right to claim the prohibition of business type of the same type of business (affirmative); and whether it violates the good faith principle to make an expression of intent or act
[2] In a case where a management body under Article 23 (1) of the Multi-Unit Residential Building Act has a building on which the relationship of sectional ownership is constituted, whether it is naturally an organization established with all sectional owners as members (affirmative), and whether a sectional owner of an area of exclusive ownership unsold in an aggregate building is also a member of the management body
[1] In a case where a building company constructed a commercial building for sale by designating a type of business for each shop and selling it in lots, the buyer or transferee of the position of the buyer of the shop shall be deemed to have consented to fulfill the duty of restrictions on the type of business agreed in the sale contract explicitly or implicitly in relation to the tenant of the shop, barring any special circumstance. Therefore, in a case where the buyer or transferee of the shop violates the trade restriction agreement as stipulated in the sale contract, the buyer or transferee of the shop has the right to claim the prohibition of the same type of business for the exclusion of infringement, and once the above consent was given, it cannot be permitted because it violates the principle of good faith to make an explicit declaration or act later.
[2] Article 23 (1) of the Multi-Unit Residential Building Act provides that "if the relationship of sectional ownership is established for a building, sectional owners shall form a management body with the purpose of carrying out the business of managing the building, its site and its accessory facilities by all the sectional owners." Thus, the management body is not a organization established only through an organizational act but, if a building is established for the sectional ownership, it is naturally established by all the sectional owners. Thus, if the sale of an aggregate building commences and the occupancy of an aggregate building is required for joint management as a result of the establishment of a management body consisting of all the sectional owners including the sectional owners of the unsold section
[1] Articles 2 and 105 of the Civil Act, Article 300 of the Civil Execution Act / [2] Article 23 (1) of the Multi-Unit Residential Building Act
[1] Supreme Court Decision 97Da42540 delivered on December 26, 1997 (Gong1998Sang, 501), Supreme Court Decision 2001Da4604 delivered on August 23, 2002 (Gong2002Ha, 2191) / [2] Supreme Court Decision 94Da49687, 49694 delivered on March 10, 1995 (Gong1995Sang, 1590), Supreme Court Decision 94Da27199 delivered on August 23, 1996 (Gong196Ha, 2797) (Gong197Ha, 2797)
Creditor (Seouldong Law Firm, Attorney Kim Hong-chul, Counsel for plaintiff-appellant)
Debtor (Attorney Jin-law, Counsel for the defendant-appellant)
Suwon District Court Decision 2001Na15566 delivered on June 21, 2002
The appeal is dismissed. The costs of appeal are assessed against the debtor.
In a case where a building company constructs a commercial building and parcels out the position of the buyer or transferee of the position of the buyer of the commercial building by designating the types of business for each shop, it is reasonable to deem that the buyer or transferee of the position of the buyer of the commercial building consented to the buyer or transferee of the position of the buyer, barring any special circumstance, by mutually or implicitly in relation to the tenant of the commercial building, to accept the obligation of restrictions on the type of business agreed in the sales contract. Therefore, in a case where the buyer or transferee of the shop violates the agreement on the restriction on the type of business set forth in the sales contract, any person whose business interest is likely to be infringed is entitled to claim the prohibition of the same type of business for the exclusion of infringement (see, e.g., Supreme Court Decisions 97Da42540, Dec. 26, 1997; 201Da46044, Aug. 23, 202).
According to the facts duly admitted by the court below, the buyers of the store of this case, including creditors and debtors, agreed to permit the duty of restricting the type of business agreed in the mutual sales contract in relation to the shop occupants of this case for one year from the date of entering into the sales contract with the selling company, and it is reasonable to deem that the buyers including debtors agree to the duty of restricting the type of business as above by setting up the rules of the commercial business opening meeting autonomously and setting up the rules of the commercial business opening meeting. It is reasonable to view that the debtor's expression of other intent, such as withdrawal from the commercial opening meeting after the above consent, is not permissible as it violates the good faith principle.
Therefore, the decision of the court below is just in accepting the creditor's claim, and there is no error of misconception of facts that affected the judgment due to the violation of the rules of evidence.
However, Article 23 (1) of the Multi-Unital Building Act (hereinafter "the Multi-Unital Building Act") provides that "if a sectional ownership relationship is established with respect to a building, sectional owners shall form a management body with the purpose of carrying out the business on the management of the building and its site and its accessory facilities by all the sectional owners." Thus, the management body is naturally an organization established with all the sectional owners if a building is established, not by any organization, but by all the sectional owners (see Supreme Court Decisions 94Da49687, 49694, Mar. 10, 1995; 94Da27199, Aug. 23, 1996, etc.). If the sale of a multi-unit building is commenced and it is necessary to conduct joint management as a result of the commencement of the sale of a multi-unit building and occupancy, a management body consisting of all the sectional owners, including the sectional owners of the unsold section of exclusive ownership at that time.
In addition, according to Article 29 (1) of the Multi-Family Building Act, the establishment of a management body agreement shall obtain the consent of not less than 3/4 of the sectional owners and voting rights, and according to Article 37 (1) of the same Act, the voting rights shall be based on the ratio of shares pursuant to Article 12 of the same Act. According to the records, 35 stores among the commercial buildings of this case as of October 2, 200, when the special general meeting of the decision of the court below was held, are held, and the main industry of the non-party corporation, the main company of the non-party corporation, the government-owned corporation, the government-owned comprehensive construction company, etc. (hereinafter referred to as the "sales company"), which constructed the commercial building of this case, are not sold after the joint ownership preservation registration was completed. Thus, even if the selling company is not a resident, there is no ground to be excluded from the sectional owners, and the ratio of shares in ownership of the selling company and its management body cannot be excluded from the calculation of the sectional owners and voting rights of the management body.
Nevertheless, the court below held that the management rules of the commercial building in this case have an effect on the debtor by a legitimate resolution under the Act on the Ownership and Management of Aggregate Buildings on the premise that, in many unsold stores among the commercial buildings, only the shop occupants of the sold stores can constitute the management body. However, the court below erred by misapprehending the legal principles on the management body under the Act on the Ownership and Management of Aggregate Buildings and the regulations of the management body under the Act on the Ownership and Management of Aggregate Buildings, but it is just in the conclusion
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Son Ji-yol (Presiding Justice)