[2] Whether a co-owner's act of leasing co-owned property to another person and the termination of a lease agreement constitutes an act of management of co-owned property to be decided by a majority of co-owners' shares (affirmative)

1. Determination of detailed methods for the use and profit-making of the common property among the co-owners shall be determined by a majority of co-owners' shares as matters concerning the management of the common property, and even if there was no prior agreement with other co-owners on the method of management of the common property, matters concerning the management of the common property can be independently determined. Thus, determination by a majority of co-owners of the common property to exclusively use and profit-making the specific part of the common property is lawful as the method of management of the common property (see Supreme Court Decision 2002Da9738, May 14, 2002).

In addition, since co-owners' act of leasing co-owned property to another person and the act of cancelling the lease agreement constitutes the act of management of the co-owned property, it should be determined by the majority of co-owners' shares pursuant to the main sentence of Article 265 of the Civil Act (see Supreme Court Decisions 62Da1, Apr. 4, 1962; 2010Da37905, Sept. 9, 2010, etc.).

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. A. In around 1997, A New Entertainment Co., Ltd. sold an aggregate building, 7 underground floors, and △△△△△△△△△△△△△△△△, the 15th above ground floor size (hereinafter “instant commercial building”), the 14th commercial building is divided into divided buildings, but the 471.28 square meters of the total oil area of the 14th floor is divided into 64 old units ( approximately 7.36/471.28, the co-ownership of the 14th unit is about 7.36/471.28). Accordingly, the 14th commercial building in this case was co-owned by many individuals.

B. The Plaintiff purchased a total of 19 old units from November 17, 2011 to September 16, 2014, and completed the registration of ownership transfer for that shares. Moreover, the Defendant is a non-corporate association composed of co-owners of the 14th floor of the instant commercial building.

C. Co-owners of the 14th floor of the instant commercial building have been managing the jointly owned property as follows. ① On June 4, 2001, NBW new Co., Ltd started operating and managing Lestop in the said 14th floor, and was dissolved since profits were not separated. ② From April 4, 2007, the Defendant, as from July 1, 201, managed Estop Co., Ltd., respectively, and ③ from May 31, 201 to May 31, 201, the Defendant was finally managing the 14th floor through the Defendant’s general meeting of members (hereinafter “instant general meeting”). NBA and NBP Co., Ltd. were established by co-owners for the management of the 14th floor.

D. At the instant general meeting, co-owners of the 40 unit units among the 64 unit units were present, and the participants passed the following resolution with full value. ① The Non-party shall be elected as the Chairperson of the Defendant’s new position. ② The Defendant’s budget bill on the 14th floor of the instant commercial building shall be approved until May 31, 2014, and the Defendant’s budget bill on the above 14th floor shall be approved from June 1, 2014. ③ The Defendant’s Sung Forest, the managing body of the general meeting, is dissolved. Meanwhile, according to the Defendant’s budget bill adopted at the instant general meeting from June 12, 2014 to December 12, 2014, revenue items are KRW 59,00,000, KRW 5,900,000, KRW 64,900, total revenue amount of KRW 690,000, KRW 600, total revenue amount of KRW 400,006,000.

E. The lower court concluded a lease agreement with the lessee on the 14th floor during the respective management period and received deposits and rents with the lessee, which is in charge of the management of the 14th floor of the instant shopping mall, and paid a certain dividend to the members of the Defendant (co-owners) according to the criteria set by the Defendant.

F. On November 17, 2011, the Plaintiff demanded the Defendant to pay the rent-making profit calculated from around November 17, 201, which acquired the share of the Plaintiff. The Defendant, rather than the Plaintiff’s demand, intended to pay the dividend of KRW 54,041,770 calculated according to the terms and conditions set forth in the expenditure, settlement of accounts, and budget bill adopted at the instant general meeting. However, as the Plaintiff refused to receive the said money, the Defendant deposited

3. We examine in light of the legal principles as seen earlier. The general assembly of this case attended and resolved by the co-owners who own a majority of the share of the 14th floor of the commercial building of this case. The budget bill resolved at the general assembly of this case is that “the Defendant distributes the remainder, excluding all expenses approved by the co-owners, to all co-owners in co-ownership, from the rent income acquired by leasing the 14th floor of the commercial building to a third party.” This is effective for all co-owners even if a majority of co-ownership determined a specific method for using and making profits from the 14th floor of the commercial building of this case, which is the co-owners, and did not undergo consultation with the Plaintiff, which is one of the co-owners, even though they did not individually use and make profits from the common property. Moreover, it is permissible to determine the specific method for the use and profit-making of the common

Therefore, the Defendant distributed the remainder other than all kinds of expenses from the leased income received from the lessee according to the resolution of the general assembly of this case to co-owners including the Plaintiff, and the Defendant cannot be deemed to have made unjust enrichment without any legal grounds. In light of the record, it is not unreasonable to allocate the remainder after the Defendant deducted various expenses from the leased income to co-owners. The lower court’s rejection of the Plaintiff’s claim for return of unjust enrichment is justifiable for reasons as stated in its reasoning, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

4. 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 Park Jung-hwa (Presiding Justice)