[2] In a case where the management organization established for the management of a commercial building by the co-owners of the commercial building entered into a service contract with the Gap corporation, but the management organization and the Gap corporation want to recover the right to collect the management expenses granted by the management organization for the management expenses of the Gap corporation, the case holding that the judgment below erred by misapprehending legal principles in holding that Gap corporation, which was merely an organization to collect the management expenses, cannot directly claim the management expenses against the will of the management organization, even though the management organization may terminate the above service contract if it does not want to do so any more than the management expenses of the Gap corporation, and the management organization and the management organization want to recover them

1. According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning based on the adopted evidence. The management organization of this case is an organization established by the co-owners of this case for the management of the above commercial section, which is jointly owned property, pursuant to Article 265 of the Civil Act. The above co-owners delegated the management of the above commercial section to Defendant 2 (the representative of the management organization at the time of this case) by a majority resolution of co-ownership at the meeting of this case on November 2, 2003, and concluded the service contract of this case within the scope of its management around August 2, 2008 with the plaintiff, the management organization of this case can be deemed to have the authority to collect management expenses of the commercial section of this case. However, if the management organization of this case and the plaintiff want to recover management expenses granted by the management organization of this case, which is delegated to the plaintiff, from the time of dispute over the management expenses belonging to the management organization of this case and the plaintiff, the court below determined that it was reasonable to directly interpret the management organization of this case and the plaintiff 1.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

In the case of a delegation contract, the mandator may terminate the contract at any time pursuant to Article 689(1) of the Civil Act. However, even so, it is not permissible for the delegating person to unilaterally suspend the validity of some of the terms and conditions of the contract while maintaining the delegation contract, or to terminate only a part of the contract. In addition, it is also the same as the case of a delegation contract, since the parties to the delegation contract have a dispute between the delegating parties, to suspend the validity of only a part of the terms and conditions of the contract in favor of the delegating parties alone cannot be inferred without permission.

Therefore, in the instant case, in a case where the instant management organization, the delegating, does not want to manage the Plaintiff’s commercial area any longer, the instant management organization can terminate the instant management contract based on Article 689 of the Civil Act, etc., and cannot unilaterally extinguish the Plaintiff’s right to collect management expenses for the occupants without cancelling the said contract. In addition, there is no circumstance to deem that there was a mutual agreement between the instant management organization and the Plaintiff to return the right to collect management expenses for the occupants to the instant management organization when there was a dispute over the future management expenses when the instant management organization and the Plaintiff arose.

Nevertheless, the lower court determined that the Plaintiff could not directly charge management expenses to the occupants of the commercial building of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the termination, etc. of delegation contracts, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point is with merit.

Furthermore, according to the records, the defendants asserted that the above contract was lawfully terminated by June 3, 2010 of the management organization of this case upon the plaintiff's violation of the service contract of this case, such as imposing and notifying the management organization of this case without the approval of the management organization of this case, and there was no argument that the defendants included the intent of termination under Article 689 (1) of the Civil Act by the closing date of argument. Thus, the judgment of the court below additionally to recognize the termination of contract under Article 689 (1) of the Civil Act, which the defendants did not assert, is contrary to the principle of pleading.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)