[1] The case holding that Article 42 of the Act on the Ownership and Management of Aggregate Buildings provides for the restriction on the type of business of the regulations on each floor, which is established on the basis of the delegation provision of the regulations stipulated by the management body under the Act on the Ownership and Management of Aggregate Buildings, has effect on the special successor, lessee, etc. of the owner

[2] In a case where the management body rules concerning the restriction on business type are newly established, whether the latter part of Article 29(1) of the Act on the Ownership and Management of Aggregate Buildings constitutes “when a certain sectional owner has a special effect on his/her rights” (negative)

[1] The case holding that since the rules on the restriction on the types of business of the Subdivision set forth in the rules stipulated by the management body under the Act on the Ownership and Management of Aggregate Buildings have the effect as part of the "laws" stipulated under Article 42 of the same Act, the provisions on the restriction on the types of business set forth in the rules of the Subdivision set forth by the management body have the effect as part of the "laws" stipulated under Article 42 of the same Act, it would affect the special successor, lessee, etc. of the owner of the sectional ownership of the relevant floor, who has the right to the special successor, etc. of the owner of the sectional ownership of the relevant floor, to whom detailed matters concerning the restriction on the types of business should be prescribed by the rules of the management body are delegated by the management body, in light of the purport that the sectional owners of other floors consent to the adjustment of the interests of the owners of the divided ownership of the relevant floor and that the rules of

[2] In a case where the regulations of the management body concerning the restriction on the type of business are newly established, even if the sectional owners have an impact on their rights, such as the exercise of ownership is somewhat restricted, this would affect all sectional owners equally, and barring any special circumstance, it does not constitute “when the rights of partial sectional owners are affected specially” in the latter part of Article 29(1) of the Act on the Ownership and Management of Aggregate Buildings.

[1] Articles 28 and 42 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 29 (1) of the Act on the Ownership and Management of Aggregate Buildings

Plaintiff 1 and one other (Attorney Lee Dong-soo, Counsel for the plaintiff-appellant)

Defendant (Attorney Song-soo et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2005Na8031 decided May 18, 2006

All appeals are dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal No. 1 (misunderstanding of legal principles as to the management rules of an aggregate building)

According to the reasoning of the judgment below, after compiling the evidence adopted in its reasoning, the court below acknowledged the facts as stated in the judgment below, and found the commercial building (hereinafter “the building in this case”) as stated in the attached list of the judgment below as follows. The provisions on the restriction on the business type of the management body established by the EXE under the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) and the provisions on the procedure of the 4th floor association established by the 4th floor association composed of the four-story tenant and the occupant, which were delegated by the management body rules, were established by the 4th floor management association composed of the four-story tenant and the occupant. This provision applies to the case where not only the existing tenant or occupant but also the previous tenant or the tenant who acquired the status from the existing tenant, wishes to change the business type designated by the 4th floor management association without obtaining the approval of the new 3th floor management association of this case since it is reasonable to view that the provisions of Article 42 of the Aggregate Buildings Act apply to the case where the plaintiffs sought the approval of the new 4th floor management association.

The records and the details of the management body rules, and the details of the establishment of the 4th floor management body rules, in particular, the 4th floor management body rules of the building of this case were prepared based on the provision that is enacted by the management body rules established by the management body which belongs to the management body under the Act on the Ownership and Management of Aggregate Buildings, and the provision that delegates the authority to regulate detailed matters according to the authority to enact the regulations by floor and the restriction on the type of business. As to the 4th floor management body rules, the consent of at least 3/4 of sectional owners and voting rights under the first part of Article 29 (1) of the Act on the Ownership and Management of Aggregate Buildings is obtained, and the purport that the management body rules delegate the detailed matters concerning the restriction on type of business to the 4th floor management body rules is to be delegated by the management body rules, and all other sectional owners of the 4th floor of this case shall be interpreted as the contents of the management body regulations by consent, and thus, it shall also be deemed as effective as the 4th floor management body of this case.

Furthermore, the latter part of Article 29(1) of the Act on the Ownership and Management of Aggregate Buildings provides that "if the establishment, amendment, and repeal of the management body's regulations has a special effect on some sectional owners' rights, the consent of those sectional owners shall be obtained." However, as in this case, even if the new management body regulations on the restriction on business type were established, such new regulations are affected on the rights of sectional owners, such as the exercise of ownership may be somewhat restricted, this would affect all sectional owners equally. Ultimately, barring any special circumstance, it cannot be said that it would affect only some sectional owners," and thus, it does not affect only some sectional owners, barring any special circumstance. Thus, even if the defendant's non-party 1, 30 of the fourth floor owner, who was leased by the defendant, did not consent to the fourth floor regulations, the validity of such regulations cannot be denied.

Therefore, we affirm the decision of the court below that the provisions of the management body of the building of this case and the provisions of the restriction on the type of business, such as prior approval of the same type of business as stipulated in the regulations of the management body of the building of this case, are applied to the defendant, and there is no error of law by misunderstanding the legal principles as to the management body regulations

2. As to the ground of appeal No. 2 (misunderstanding of legal principles as to deviations from the scope of delegation by the management body rules)

In light of the records, Article 25 (5) 2 of the Regulations of the Management Body of the instant building provides that "any tenant after the enactment of this provision must commence business after obtaining prior approval from the Management Committee," and subparagraph 4 of Article 25 provides that "any tenant designated business by floor shall be delegated to the Management Committee on the floor level, and shall execute it." Thus, Article 12 (3) of the Rules of the 4th floor group of the instant building provides that "if the type of business and new type of business overlap before the enforcement date, the tenant shall make a sale after obtaining the approval of the Management Office after consultation with the 4th floor council," the provision that "if the type of business and new type of business overlap before the enforcement date, the tenant shall make a reduction in the type of business not all new points prescribed by the Management Body Regulations but the above provision is deemed to be beyond the delegation scope of the Management Body's regulations, and on a different premise, this part of the grounds for appeal asserting that the lower court erred by misapprehending the legal principles on the delegation scope of the Management Body's regulations cannot be accepted.

Furthermore, without considering the provisions of the 4th floor conference rules that dispute whether or not the defendant applies to himself, even if only the provisions of the management body rules that recognize the validity of the provisions of the Act on the Ownership and Management of Aggregate Buildings are placed, Article 25 (1) of the management body rules provides that the defendant shall observe the designated type of business, and Article 25 (5) 2 of the management body rules provides that the tenant after the enactment of the management body rules obtains prior approval from the management committee. In this case, it is apparent in the records that the defendant changed the existing type of business without approval from the management committee and moved in the existing type of business. Thus, the plaintiffs who are at risk of infringing upon the business interest due to the defendant's commencement of the same type of business as the plaintiffs in violation of the management body rules have the right to claim prohibition of the same type of business in order to exclude infringement, and therefore, we agree with the conclusion of the judgment of the court below without any need to decide

3. Conclusion

Therefore, all appeals by the Defendant 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 Jeon Soo-ahn (Presiding Justice)