[대여금][공1997.2.1.(27),306]
The case holding that the owner of a building who was not able to complete the sale before the managing body commences the actual autonomous management of an aggregate building shall not bear the managing body's liabilities or accept the comprehensive acquisition of the liabilities borrowed in order to use them for management expenses while managing
The case holding that a management body of an aggregate building under Article 23 (1) of the Multi-Unit Residential Building Act is established as a member of all sectional owners in the absence of any organization, but it cannot be viewed as an autonomous management by the management body immediately if the owner of an unsold section of exclusive ownership, among sectional owners, who is the owner of an unsold section of exclusive ownership, in a state in which the management body was not actually organized, becomes the owner, and has actually managed the building, and even if the owner of a store and lessee in the building were to be organized by the self-management preparatory committee as the representative of each floor, and even though the self-management preparatory committee is an organization deemed to be identical with the management body created after the autonomous management committee was established, if the owner was not the owner after being transferred the management right from the owner, and still becomes the owner and still becomes the owner, the obligation and obligation arising during the management period of the owner shall not be attributed to the preparation committee, and thus, the management body cannot be viewed as bearing or accepting the obligation to use the building for management expenses during the period of its actual self-management before the owner commences.
Article 23 (1) of the Multi-Unit Residential Building Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)
Sung-hee (Attorney Han-chul et al., Counsel for the defendant-appellant)
Autonomous Building Management Committee (Attorney Dog-sik, Counsel for the plaintiff-appellant)
Seoul High Court Decision 94Na32742 delivered on January 31, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
On the first ground for appeal
Based on its adopted evidence, the court below held that the court below held on June 1987, when the non-party company Egypt Co., Ltd (hereinafter the non-party company) constructed the instant marina building in 1985 and directly occupied and used the non-party Kim Ho-ho as the head of the management office and was managing the building, the non-party Kim Ho-ho was the owner of the above building in the building and the lessee as the representatives of each floor (hereinafter the preparatory committee) and the tenant appointed the chairman of the autonomous management preparation committee to elect the above Kim Ho-ho as the head of the management office and the tenant appointed the above Kim Ho-ho as the head of the management office. However, although the preparatory committee received the right to manage the building from the non-party company and continued to manage the building in accordance with the direction of the representative director of the non-party company, the non-party company's non-party company's non-party company's non-party company's construction and continued to manage the building in accordance with the above autonomous management committee's 198th of December 19, 198988.
In light of relevant evidence and records, all of the above recognition and judgment of the court below are acceptable, and there is no violation of the rules of evidence, such as theory of lawsuit, etc.
In addition, even though the management body of an aggregate building under Article 23 (1) of the Multi-Unit Residential Building Act does not perform any act of organization, it is clear that even if the management body does not do so, all sectional owners are members of sectional owners, it cannot be deemed that the management body actually manages the building without actual organization. Further, the purport of the fact-finding and decision by the court below is that since the Preparatory Committee was equipped with an organization for self-management before the beginning of the management of the defendant around January 1989, since the Preparatory Committee was the main body of the building and the claims arising during the management of the building do not belong to the Preparatory Committee as to the non-party company. Thus, even if the Preparatory Committee was a non-party organization that is recognized as identical with the defendant after the establishment of the Preparatory Committee, it cannot be deemed that the defendant bears obligations for the above period of time or acquires the aggregate property for the above period of time, the decision of the court below is justified in the misapprehension of legal principles as to the aggregate building or the aggregate property management.
On the second ground for appeal
The court below rejected the plaintiff's assertion on the debt of the non-party company borrowed for the management expenses of the above building before the defendant's autonomous management was performed on the ground that the defendant did not have an obligation to take over the debt of the non-party company and did not have any evidence to consider that it was comprehensively taken over the debt, barring any special circumstance. The above decision of the court below is just and there is no violation of the rules of evidence such as theory of lawsuit, management of aggregate buildings, or misunderstanding of the legal principles on the nature of the non-corporate group.
On the third ground for appeal
Although examining the reasoning of the judgment below in light of the records, the court below's rejection of the plaintiff's assertion that the defendant lent the amount of money claimed after the defendant commenced self-management to the defendant, and there is no violation of the rules of evidence such as the theory of lawsuit. All arguments are without merit.
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 Ahn Yong-sik (Presiding Justice)