[2] Whether the management work of the common areas and the site for an aggregate building is basically representing the management body comprised of sectional owners and the manager thereof (affirmative) / The purport of Article 16(1) of the Act on the Ownership and Management of Aggregate Buildings is to stipulate that the exercise of rights based on the share ownership against the common areas and the site is against the interests of other sectional owners, whether the exercise of rights should be deemed an act of management that requires the resolution of the management body meeting, not an act of preservation individually permissible for each sectional owner (affirmative)

[3] The case holding that in a case where Gap corporation, an urban gas business entity, established a regular pressure room on the site of apartment with the approval of use without compensation, and supplied urban gas to the above apartment and its neighboring areas, and the chairman, the representative of the council of occupants' representatives, and Eul et al., who are their spouses, filed a lawsuit against Gap corporation seeking removal of the regular pressure room and transfer of the site to Gap corporation according to the resolution of the council of occupants' representatives, and did not go through the resolution of the management body meeting, the Eul et al.'s claim is not for the management of the site of apartment, but for the management of the site of apartment, and it cannot be permitted without going through the resolution of the management body meeting of apartment under the main sentence of

[2] Article 25(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Act”) provides various special provisions on the sharing of the Civil Act for the efficient and appropriate maintenance and management of common areas and sites essential for the existence of an aggregate building, and for the coordination of mutual interests among sectional owners surrounding communal living in an aggregate building. If a sectional ownership relationship is established, the management body of an aggregate building with all sectional owners as its members for the purpose of managing a building and site, etc. (Article 23). If there are at least 10 sectional owners, the management body shall represent the management body and appoint a manager for the management activities (Article 24), and the preservation, management and alteration of common areas shall not be against the common interests of the managers (Article 25(1)). If a sectional owner performs such acts, the manager may file a claim for suspension of such acts, and the lawsuit for this purpose shall undergo a resolution at the management body meeting (Article 43(1) and (2) of the Act). Therefore, the management body of an aggregate building and the manager of the aggregate building shall be basically.

Article 16(1) of the Act on the Ownership and Management of Aggregate Buildings provides that matters concerning the management of a common area shall be determined by a resolution of a management body's ordinary meeting, and Article 19 of the same Act provides that "if a sectional owner exercises his/her right on the basis of his/her common area and site, each co-owner may do so, and Article 16(1) of the same Act shall apply mutatis mutandis to the site of the building and facilities attached thereto, other than the common area owned by the sectional owner. The purport of Article 16(1) of the Act on the Ownership and Management of Aggregate Buildings is to prescribe that a sectional owner, who is a co-owner, can exercise his/her right solely by distinguishing from the management act to maintain the phenomenon of the common area and site of the aggregate building. In full view of the purport of the proviso of Article 265 of the Civil Act, and the legislative purport and relevant provisions of the Act on the Ownership and Management of Aggregate Buildings, if the sectional owner violates the interests of the other sectional owners, it shall not be deemed that each sectional owner may exercise his/her right individually.

[3] The case holding that in a case where Gap corporation, an urban gas business operator, installed a pressure room on the site of apartment with the consent of use at the time of constructing apartment, and supplied urban gas to the above apartment and its neighboring areas, and the president, the representative of the council of occupants' representatives, and Eul, his spouse, filed a lawsuit against Gap corporation to seek removal of the pressure room and transfer of the site in accordance with the resolution of the council of occupants' representatives, and did not go through the resolution of the management body meeting, the above pressure room may interfere with the supply of urban gas if the owners of apartment remove the essential facilities for urban gas supply, and it is hard to live smoothly without urban gas supply, and the request for removal of the pressure room and delivery of the site can be against the interests of other sectional owners, and it is difficult to view Gap corporation's installation of the lawfully pressure room with the consent of use at the time of constructing apartment site, and the right to seek removal of the site of apartment site exists thereafter, and it cannot be seen as an act of maintaining the phenomenon of apartment site of the management body's meeting.

1. Preservation of the article jointly owned is a factual and legal act conducted to prevent the destruction or damage of the article jointly owned and to maintain its phenomenon. The purport of the proviso of Article 265 of the Civil Act that the act of preservation of the article jointly owned is that each co-owner can alone do so, because there are many cases where the act of preservation is urgently needed and it is common benefit to the other co-owners (see Supreme Court Decision 93Da54736, Apr. 7, 1995, etc.).

The Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act”) has several special provisions on the ownership under the Civil Act to facilitate and properly maintain and manage common areas and sites essential for the existence of an aggregate building, and to coordinate mutual interests among sectional owners surrounding communal living in an aggregate building. If a sectional ownership relationship is established, the management body of an aggregate building, the purpose of which is to manage the building, site, etc. with all sectional owners as its members (Article 23). If there are at least ten sectional owners, the management body of an aggregate building, the purpose of which is to represent the management body and to manage the building, site, etc. (Article 24). The management body of an aggregate building shall represent the management body and appoint a manager to conduct management activities (Article 25(1)), and the preservation, management and alteration of common areas, etc. shall not be against the common interests of the management body (Article 5(1)). If a sectional owner performs such acts, the manager may file a request for the suspension of such acts, and the filing of a lawsuit therefor shall undergo a resolution at the management body’s meeting (Article 43(2).

Article 16(1) of the Act on the Ownership and Management of Aggregate Buildings provides that matters concerning the management of a common area shall be determined by a resolution of a management body's ordinary meeting, and Article 19 of the same Act provides that "if a sectional owner exercises his/her right to the common area and site, it shall be deemed that each co-owner may do so, and Article 16(1) of the same Act shall apply mutatis mutandis to the site and accessory facilities, other than the common area of the building jointly owned by the sectional owner. The purport of Article 16(1) of the Act on the Ownership and Management of Aggregate Buildings is to prescribe that a sectional owner, who is a co-owner, may exercise his/her right solely by distinguishing from the management act to maintain the phenomenon of the common area and site of the aggregate building. In full view of the purport of the proviso of Article 265 of the same Act, and the legislative purport and relevant provisions of the Act on the Ownership and Management of Aggregate Buildings, if the sectional owner's exercise of right to the common area and site violates the interests of the other sectional owners, it shall not be deemed an act of management

2. A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

(1) The Plaintiffs, as co-owners of the instant apartment that consists of a total of 1,220 households, share the site of the apartment in proportion to their share of the site.

(2) On December 8, 2005, the Defendant, an urban gas business entity, obtained the approval of use permanently and gratuitously from the executor at the time of constructing the instant apartment, installed the instant static pressure room (a single-story building with an area of 19.8 square meters) on the ground of 49.7 square meters in the apartment site. The said static pressure room is to convert high pressure into low pressure urban gas into low pressure household, and is essential facilities to supply urban gas in the instant apartment and its neighboring areas.

(3) On October 25, 2012, the council of occupants’ representatives of the apartment of this case decided to file the instant lawsuit, and the president of the council of occupants’ representatives and the representative and the plaintiffs, who are their spouses, filed the instant lawsuit against the Defendant seeking removal of the pressure room of this case and the transfer of the site. However, the Plaintiffs did not undergo the resolution of the council of occupants’ representatives of the apartment of this case except for the resolution of the council of occupants’ representatives

B. We examine the above facts in light of the legal principles as seen earlier. In light of the fact that the owner of the instant apartment, as an essential facility for the supply of urban gas, removal of the instant pressure room may hinder the supply of urban gas, and that the Plaintiff’s claim for removal of the instant pressure room and delivery of the site is difficult without the supply of urban gas, the Plaintiff’s claim for removal of the instant pressure room and delivery of the site may be contrary to the interests of other sectional owners of the instant apartment. In addition, when the Defendant constructed the instant pressure room with the consent to use the apartment at the time of construction of the instant apartment, and thereafter, the instant pressure room existed in the site of the instant apartment, it is difficult to view that seeking removal is an act to maintain the phenomenon of the instant apartment site.

Therefore, the claim of this case is not an act of preservation but an act for managing the site of this case, and it must undergo a resolution by the management body meeting of the apartment building of this case pursuant to Article 16 (1) of the Aggregate Buildings Act. Thus, the plaintiffs' claim of this case is not permissible because it did not undergo such a resolution.

In this regard, the lower court’s determination that rejected the Plaintiffs’ claim is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine of the Urban Gas Business Act, thereby failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the preservation of jointly owned

3. Therefore, all appeals are 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 Kim Jae-hyung (Presiding Justice)