208Gahap928 User Fees

1. A stock company;

2. B

3. C.

July 16, 2009

November 2009, 5.

1. All of the plaintiffs' claims are dismissed. 2. Costs of lawsuit are assessed against the plaintiffs.

From May 17, 2007 to the suspension of the use of the parking lot on the fifth floor of the 5th floor of the building in the annexed list No. 1, the Defendant shall pay the Plaintiff Co., Ltd. the amount calculated by each ratio of KRW 3,780,00 per month to the Plaintiff Co., Ltd. and KRW 1,890,000 per month.

1. Facts of recognition;

The following facts may be acknowledged in full view of the evidence Nos. 1 (the evidence No. 3; hereinafter the same shall apply to the evidence No. 3), 2-1, 2, 3, 4-1 through 8, 5, 6-1, 2, 8-1 through 4, 9, 1, 8-1, 1, 8-2, and 8-2, and the purport of the whole pleadings in each statement No. 8.

A. The building No. 1 in the attached list (hereinafter referred to as the "building of this case") was newly constructed by E with a building permit on January 14, 1997. E completed the building of this case around October 1998, and E completed the registration of preservation of ownership by dividing it into general restaurants and parking lots, 1, 2, 3, 4, and 5 floors, 3, 4, and 5 floors, parking lots, rooftops, and rooftops (6, 7 floors) with the use approval for a golf practice range as its main purpose.

B. Of the instant building, Section II listed in the separate sheet corresponding to the 3, 4, and 5 floors among the instant building (hereinafter referred to as “instant parking lot”) owns 1/2 shares, 1/2 shares, 1/4 shares, and 1/4 shares, respectively, of the Plaintiff Co., Ltd., and the Plaintiffs currently operate fee-charging parking lot business.

C. The Defendant, among the instant buildings, is operating a driving range under the trade name of "F" as the owners of the third-class buildings listed in the separate sheet corresponding to the rooftop and rooftop floor (6,7 floors) (hereinafter referred to as "the instant driving range").

D. On the front of the instant golf driving range, there are four parts, each of which is supported by steel structure with the outermost of the fifth floor. On the fifth floor (six-story floor) located below the above objects, a parking lot which can park 31 vehicles (hereinafter “house parking lot”) is installed, and the Defendant has used the rooftop parking lot as a parking lot for customers of the said golf driving range.

E. The customers having access to the instant driving range using a motor vehicle enter the entrance of the first floor of the instant parking lot, and park a motor vehicle up to the fifth floor (six-story floor) and on the rooftop parking lot using a blick-type vehicle mobile passage (hereinafter “the instant vehicle mobile passage”). There is no other way to open the rooftop parking lot using a motor vehicle to the rooftop parking lot.

F. The building ledger of the instant building and the real estate register are registered as the vehicle mobile passage of the instant building belongs to the section of exclusive ownership in the instant parking lot.

2. The plaintiff's assertion and judgment

A. The assertion

(1) The assertion about the rooftop parking lot

A) The rooftop parking lot is the top part of the fifth floor of the building of this case, and is not indicated as the object of the real estate registration injury, and there is no other mechanism to conceal ownership in the building ledger, and thus, it should be deemed as belonging to the section of exclusive ownership of the fifth floor as an essential element of the fifth floor. In particular, the parking-only building of this case is an exclusive parking building and its parking lot is not a common section in the nature to be offered for convenience in the use of other facilities, but a parking lot itself has an independent purpose, and it is common to use it as a parking lot by linking it with a vehicle moving path. The rooftop part of the building of this case is a parking lot. The parking lot of this case is indicated as the parking lot of this case as the parking lot of this case, which is the aggregate parking number and parking lot of the rooftop parking lot of this case, and the unregistered building installed in the sixth floor of this case is also indicated as the parking lot management section of the aggregate building ledger. Thus, the rooftop parking lot of this case, which is the part of the parking lot of this case.

B) Even if rooftop parking lots constitute common areas of all sectional owners of the instant building.

Even if they are grandchildren, the rooftop parking lot can be used jointly by all sectional owners, and the defendant does not have the right to use it as the exclusive part, so the defendant shall divide the profits from use acquired by using the rooftop parking lot alone as the exclusive part for exclusive use into all sectional owners of the building of this case according to the ratio of the area

(2) As to the instant vehicle mobile passage

Since the vehicle moving passage of this case is the building site of the parking lot of this case owned by the plaintiffs that are registered as the part of exclusive ownership of the plaintiffs in the real estate register, the defendant shall pay the user fee of the vehicle moving passage of this case to the plaintiffs.

(3) The amount of the fee to be paid by the Defendant

In light of the above, the Defendant’s average 120 vehicles that enter the instant golf driving range operated by the Defendant are parked on an average of 1,30 minutes per day, and the parking fees are average of 360,000 won per day (per hour 2,000 won x 120: 5 January 120), and the monthly average of 10,800,000 won per day, or there is room for recognizing the rooftop parking lot as common use by all sectional owners of the instant building, even though the Defendant is one of the sectional owners of the instant building and the rooftop parking lot is likely to be recognized as common use areas of all sectional owners of the instant building, the Defendant is obliged to pay the Plaintiffs the above regular parking fees of KRW 7,560,00 per month, 700 per day and 5,000 per day, which

B. Determination

(1) Determination as to the assertion on rooftop parking lots

(A) Article 10(1) of the Act on the Ownership and Management of Aggregate Buildings provides that "the section for common use belongs to the co-ownership of all sectional owners." However, the section for common use that is obvious that only some of sectional owners are offered for the common use belongs to the co-ownership of those sectional owners. Whether a part of an aggregate building is a section for common use shall, in principle, be determined at the time when the whole building is completed and registered as a sectional ownership in the building ledger for the building in question. The subsequent change in the situation of remodeling or use of the building shall not affect whether it is a section for common use or not (see Supreme Court Decision 9Da1345 delivered on September 17, 1999). In addition, the prop, roof, outer wall, basic structure, and other sections of the building provided to all or some of those sectional owners are not the section for common use, and whether a part of the building is provided for the public use of all or some of those sectional owners is determined by the objective purpose of the building in accordance with the Ordinance of the Ministry of Land, Infrastructure and Transport and Transport. 296.

B) According to the above facts, the rooftop parking lot is part of the fifth or sixth floor floor of the building of this case and necessary to maintain the safety or exterior of the entire building of this case. Thus, it is difficult to view the building of this case as a section for exclusive use by its structural structure or nature (it is not different because the building of this case is an exclusive parking building plus the number of parking spaces and parking spaces stated in the title section of the collective building building of this case, or the unregistered building installed on the sixth floor of this case is entered in the parking lot management office on the aggregate building ledger). Furthermore, considering the following facts, it is reasonable to view that the rooftop parking lot of this case is a common use area for all of the sectional owners of this case. 1) Since the construction of the new parking lot of this case was conducted at the time of construction of the building of this case, it is reasonable to establish or install the parking lot of this case for the public use of the rooftop building of this case, and it is also reasonable to recognize that the parking lot of this case was used for the public use of the rooftop building of this case.

C. Therefore, the defendant can exclusively occupy and exclusively use the rooftop parking lot, which is his part of the common use area. Accordingly, this part of the plaintiffs' assertion on the premise that the rooftop parking lot belongs to the section for exclusive use of the fifth floor of the building in this case or belongs to the common use area of all the sectional owners of the building in this case is without merit

(2) Determination as to the assertion on the instant vehicle moving passage

A) Since a section for common use in the structure of an aggregate building is incapable of being registered under the Registration of Real Estate Act, even if it is registered as the object of sectional ownership on the register, it is a registration of invalidation (see, e.g., Supreme Court Decision 2001Da6725, Apr. 27, 2001)

나 앞서 본 인정사실에 의하면, 이 사건 건물의 건축물대장과 부동산등기부에는 이 사건 차량이동통로가 이 사건 주차장의 전유부분에 속하는 것으로 등재되어 있으나, 한편 이 사건 차량이동통로 전체를 이 사건 주차장의 전유부분에 포함시킨다면 우선 다른 부분과 외형상 구분할 수 있는 격벽(隔壁)이 없을 뿐만 아니라 그 밖에 구분 소유권의 목적이 되는 범위를 명확하게 특정할 수 있는 객관적인 방법도 없게 되어 구조상의 독립성을 갖추었다고 보기 어렵고, 그렇지 않더라도 이 사건 차량이동통로는 옥상 주차장까지 하나로 연결되어 있어 이 사건 골프연습장의 이용객들이 자동차를 이용하여 옥상 주차장에 도달할 수 있도록 건축 당시부터 그 구조와 용도 및 이용목적이 정해져 있었고 현실적으로도 그렇게 이용되어 온 점, 자동차를 이용하여 공용부분인 옥상 주차장에 도달하기 위해서는 이 사건 차량이동통로의 이용이 불가피하므로 이 사건 건물의 건축주 또한 이 사건 차량이동통로를 이 사건 주차장의 구분소유자의 배타적 이용에 제공하려는 의사를 가지고 있었다고 볼 수는 없는 점, 이 사건 골프연습장의 구분소유자인 피고나 골프연습장의 이용객들이 이 사건 차량이동통로를 이용한다고하여 원고들이 이 사건 주차장을 배타적으로 이용하는 데에 아무런 장애가 없는 점 등을 고려할 때 이용상의 독립성을 갖추었다고도 보기 어렵다.

C. Therefore, since it is reasonable to deem the vehicle moving passage of this case as a structural common part, the registration on that part is null and void. Therefore, the plaintiffs' assertion on this part is without merit, which is premised on the premise that the vehicle moving passage of this case belongs to the part of exclusive ownership of the plaintiffs

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in entirety as it is without merit, and it is so decided as per Disposition.

Justices of the presiding judge;

Designation of Judges

Judges Kim Gin-han