2014Na2032487 Special Repair Reserve Funds

Council of Representatives

Law Firm ○○, Counsel for the defendant-appellant

[Defendant-Appellant]

A person shall be appointed.

Law Firm LLC (LLC) 00

[Defendant-Appellant]

Suwon District Court Decision 201Gahap18624 decided October 24, 2012

Seoul High Court Decision 2012492977 Decided October 23, 2013

Supreme Court Decision 2013Da216150 Decided September 4, 2014

November 5, 2014

November 28, 2014

1.The judgment of the first instance shall be modified as follows:

A. From January 1, 2004 to November 28, 2014, 522, 233, 231 won to the Plaintiff and its related amount

shall be 5% per annum, 20% per annum from the following day to the date of full payment.

H. D. Payment

B. The plaintiff's remaining claims are dismissed.

2. 10% of the total costs of litigation shall be borne by the Plaintiff, and 90% by the Defendant, respectively.

3. Paragraph 1-A(a) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff KRW 522, 426, 445 as well as to the plaintiff from January 1, 2004 to October 24, 2012.

5% per annum, 20% per annum from the following day to the date of full payment (won)

J. After remand, the purport of the claim was reduced as above in the trial after remand.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim against the revoked part shall be dismissed.

of this section.

1. Basic facts

A. C Corporation (C Corporation and D Corporation were merged on October 1, 2009 and became the defendant; hereinafter before and after the merger

without being divided, ‘Defendant' only applies to ○○○-si from the Chungcheongnam-do Governor on March 31, 1995.

The former Housing Construction Promotion Act for the business of constructing public housing of 838 households, 11 apartment houses;

Article 33(1) of the Act (amended by Act No. 5454 of Dec. 13, 1997; hereinafter the same shall apply)

and on November 7, 1997, 827 households out of which are approved by the housing construction project plan, and in other words, 827 households out of which are public leased.

A modified approval for a housing construction project plan for a selective construction project has been obtained.

B. At around 1998, the defendant was about 11 apartment units and 838 apartment units on the above land (hereinafter "the apartment units of this case").

C) The completion of the construction on May 14, 1998, after obtaining approval for use, and the part of the public lease among the instant apartment units 827

With respect to households, it has been managed as rental business operators under the Rental Housing Act.

C. Around July 2003, the Defendant converted the part of the public rental of the instant apartment into sale.

D. The plaintiff has occupied the apartment of this case according to the conversion of the above sale of the apartment of this case.

on December 31, 2003, as an organization organized pursuant to the Rental Housing Act, and from the defendant, this case

It is subject to the management of the management of the strike, but the defendant's special nature of the public rental part of the apartment of this case

There is no fund accumulated as the separate repair reserve, and it has not been transferred.

(e) Relevant statutes;

▣ 구 주택건설촉진법제33조 ( 사업계획의 승인 및 건축허가등 )① 대통령령으로 정하는 호수 이상의 주택을 건설하거나 대통령령으로 정하는 면적 이상의 대지를 조성하고자 하는 자는 사업계획을 작성하여 건설부장관의 승인을 얻어야 한다 . 사업계획을 변경 ( 건설부령이 정하는 경미한 사항의 변경을 제외한다 ) 할 때에도 또한 같다 .▣ 구 임대주택법 ( 1996 . 12 . 30 . 법률 제5228호로 개정된 것 , 이하 같다 )제17조 ( 임대주택의 관리 )① 임대사업자는 대통령령이 정하는 규모에 해당하는 임대주택에 대하여는 주택건설촉진법 제39조의 규정에 의한 주택관리업자에게 그 관리를 위탁하거나 이를 자체관리하여야 한다 . 다만 , 국가 · 지방자치단체 · C공사 또는 지방공사의 경우에는 대통령령이 정하는방법에 따라 관리할 수 있다 .제17조의2 ( 특별수선충당금의 적립등 )① 제17조 제1항의 규정에 의한 임대주택의 임대사업자는 주요시설의 교체 및 보수에 필

요한 특별수선충당금을 적립하여야 한다 .② 임대사업자는 임대의무기간이 경과한 후 건설임대주택을 매각하는 경우에는 제1항의규정에 의하여 적립한 특별수선충당금을 주택건설촉진법 제38조의 규정에 의하여 최초로 구성되는 입주자대표회의에 인계하여야 한다 .③ 특별수선충당금의 요율 , 사용절차 , 사후관리와 적립방법 등에 관하여 필요한 사항은대통령령으로 정한다 .④ 제1항의 규정에 의한 임대주택의 주요시설의 범위 , 교체 및 보수시기와 방법 등에 관하여 필요한 사항은 건설교통부령으로 정한다 .[ 부칙 ]① ( 시행일 ) 이 법은 1997년 3월 1일부터 시행한다 .② ( 건설임대주택의 매각 및 특별수선충당금의 적립에 관한 적용례 ) 제15조 및 제17조의2의 개정규정은 이 법 시행 후 최초로 주택건설촉진법 제33조 제1항의 규정에 의한사업계획승인을 얻어 건설하는 임대주택부터 적용한다 .▣ 구 임대주택법 시행령 ( 1997 . 4 . 1 . 대통령령 제15331호로 개정된 것 )제9조 ( 임대주택의 임대의무기간등 )① 법 제12조 본문에서 " 대통령령이 정하는 기간 " 이라함은 다음 각호의 기간을 말한다 .1 . 공공건설임대주택 중 국가 또는 지방자치단체의 재정으로 건설하는 임대주택 또는국민주택기금에 의한 자금을 지원받아 영구적인 임대의 목적으로 건설한 임대주택은당해 임대주택의 임대개시일부터 50년2 . 공공건설임대주택 중 국민주택기금에 의한 자금을 지원받아 주택이 없는 근로자를위하여 건설하는 임대주택은 당해 임대주택의 임대개시일부터 10년3 . 제1호 및 제2호 외의 공공건설임대주택과 민간건설임대주택은 당해 임대주택의 임대개시일부터 5년제15조의2 ( 특별수선충당금의 요율 · 사용절차 등 )① 법 제17조 제1항의 규정에 의한 임대주택을 건설한 임대사업자는 당해 임대주택의 공용부분과 부대시설 및 복리시설 ( 분양된 시설을 제외한다 ) 에 대한 장기수선계획을 수립하여 사용검사를 신청하는 때에 이를 제출하여야 하며 , 임대기간 중 당해 임대주택단지안에 있는 관리사무소에 이를 비치하여야 한다 .② 제1항의 규정에 의한 장기수선계획은 건설교통부장관이 정하는 기준에 따라야 한다 .③ 법 제17조의2 제3항의 규정에 의한 특별수선충당금 ( 이하 " 특별수선충당금 " 이라 한다 ) 은

사용검사 후 1년이 경과한 날부터 매월 적립하되 , 적립요율은 다음 각호의 1과 같다 .2 . 제9조 제1항 제2호 및 제3호의 임대주택은 건축비의 1만분의 3▣ 구 임대주택법 시행령 ( 1998 . 11 . 13 . 대통령령 제15928호로 개정된 것 )제9조 ( 임대주택의 임대의무기간등 )⑤ 공공건설임대주택을 제2항 제2호 또는 제3호의 규정에 의하여 매각하는 경우 그 매각가격의 산정기준은 건설교통부령으로 정한다 .▣ 구 임대주택법 시행령 ( 2002 . 9 . 11 . 대통령령 제17737호로 개정된 것 )제15조의3 ( 특별수선충당금의 요율 · 사용절차등 )③ 법 제17조의3 제3항의 규정에 의한 특별수선충당금 ( 이하 " 특별수선충당금 " 이라 한다 ) 은사용검사 후 1년이 경과한 날부터 매월 적립하되 , 적립요율은 다음 각호의 1과 같다 .3 . 제9조 제1항 제3호의 임대주택은 건축비의 1만분의 1 . 5▣ 구 임대주택법 시행규칙 ( 1999 . 1 . 28 . 건설교통부령 제165호로 개정된 것 )제3조의3 ( 매각가격의 산정기준 )영 제9조 제5항의 규정에 의한 공공건설임대주택 매각가격의 산정기준은 별표 2와 같다 .[ 별표 2 ]2 . 의 라 . 건축비 및 택지비임대주택의 가격산정의 기준이 되는 건축비 및 택지비는 다음과 같다 .( 1 ) 건축비가 건축비의 상한 가격은 건설교통부장관이 따로 고시하는 가격 ( 이하 " 표준건축비 " 라한다 ) 으로 한다 .라 사업계획승인권자로부터 최초 입주자모집공고에 포함하여 승인을 얻은 세대별 주택공급면적 및 대지면적에 산입되지 아니하는 지하층이나 지하주차장을 설치하는경우에는 그 면적에 대한 표준건축비의 80퍼센트에 상당하는 금액을 건축비로 인정할 수 있다 .제7조의2 ( 임대주택의 주요시설의 범위등 )법 제17조의2 제4항의 규정에 의한 임대주택의 주요시설의 범위 , 교체 및 보수시기와 방법 등은 영 제15조의2 제2항의 규정에 의하여 수립된 장기수선계획에서 정하는 바에 의한다 .

▣ 구 임대주택법 시행규칙 ( 2000 . 8 . 3 . 건설교통부령 제253호로 개정된 것 )제3조의3 ( 매각가격의 산정기준 )① 영 제9조 제5항의 규정에 의한 공공건설임대주택 매각가격의 산정기준은 별표 1과 같다 .[ 별표 1 ]2 . 의 라 . 건축비 및 택지비임대주택의 가격산정의 기준이 되는 건축비 및 택지비는 다음과 같다 .( 1 ) 건축비아 건축비의 상한 가격은 건설교통부장관이 따로 고시하는 가격 ( 이하 " 표준건축비 " 라한다 ) 으로 한다 .라 사업계획승인권자로부터 최초 입주자모집공고에 포함하여 승인을 얻은 지하층면적( 지하주차장 면적을 포함한다 ) 중 지상층 바닥면적 합계의 15분의 1까지는 표준건축비의 100퍼센트를 인정하고 , 나머지 부분에 대하여는 표준건축비의 80퍼센트에상당하는 금액을 건축비로 인정할 수 있다 .

F. Change of the method of housing supply of the apartment of this case into 11 households in public sale and 827 households in public lease

November 7, 1997, which is the date on which a change in the housing construction project plan is approved;

Construction costs (Maximum price of construction costs) are as listed below in the table, and 10 floors for the apartment complex in this case

Dong, 18 stories consisting of 11 apartment units in total, 18 stories, and 827 households in public lease.

All areas for exclusive use are 25.7 square meters or less.

A person shall be appointed.

G. The supply area of 827 households among the instant apartment units is as listed below.

A person shall be appointed.

【Uncontentious facts, Gap’s evidence Nos. 1, 4, 5, 10, 12, and Eul’s evidence No. 1

The purport of the whole

2. Summary of the parties’ assertion

A. The plaintiff 1:

1) On November 7, 1997, after the enforcement of the former Rental Housing Act, the Defendant: (a) partially public rental of the instant apartment; (b)

Since the approval for the modification of the housing construction project plan for the housing project to be built in large housing, this company

From May 14, 1999, when one year has elapsed since the inspection of use as the managing body of the apartment.

Relevant Acts and subordinate statutes up to June 30, 2003, June 30, 2003, which was before around July 2003, which converted the part of public rental into parcelling-out.

(2) The defendant shall set aside the reserve for special repair and transfer the reserve to the plaintiff. Accordingly, the defendant shall

522, 426, 445 won and delayed losses calculated in accordance with the relevant Acts and subordinate statutes for the plaintiff;

shall be liable to pay the amount.

2) The Plaintiff’s position on the part of the Defendant, even if the Defendant did not perform its duty to accumulate special repair reserve funds

Even if it is not possible to seek fulfillment of its obligation, the defendant shall be entitled to the special number provided by law.

The Plaintiff suffered damages equivalent to the above money by failing to perform the duty to deposit and transfer the reserve fund.

As such, 522, 426, 445, the damages suffered by the plaintiff due to the above default on obligation to the plaintiff

There is a duty to compensate for the original and any damages for delay.

(b) Defendant;

1) The defendant's first succession to the business plan of the apartment of this case under the former Housing Construction Promotion Act

Since the seal received on March 31, 1995, before the enforcement of the former Rental Housing Act, it was the apartment of this case.

section 17-2 of the former Rental Housing Act does not apply to the defendant. Accordingly, the defendant shall make up for the reserve fund for special repairs.

The plaintiff is not obligated to hand over to the plaintiff.

2) Even if the defendant is liable to transfer the reserves for special repair and maintenance to the defendant, the defendant shall be subject to this.

For the apartment of this case, it shall be accumulated with the knowledge that there is no obligation to accumulate the special repair reserve fund.

Article 17-2 (1) and (2) of the former Rental Housing Act (amended by Act No. 1514, Feb. 1, 201)

The council of occupants' representatives shall impose the duty to accumulate the reserve fund for special repair;

Since the defendant does not accumulate the reserve fund for special repair, the defendant is required to transfer it.

The duty to transfer the special repair reserve is in an impossible condition, and therefore the plaintiff is not to perform to the defendant.

of the defendant's failure to perform the duty to reserve the special repair reserve;

It is only possible to seek compensation for damages that the plaintiff suffered.

3) On the other hand, the Defendant is liable for the accumulation or transfer of reserves for special repair and maintenance, or for nonperformance thereof.

Even if liability is borne, ① some types of houses among the apartment buildings in this case as rental houses.

November 7, 1997, which is applicable at the time of change of the housing construction project plan; and

The standard construction cost of rental housing under this section shall be the upper limit of the construction cost under the "Guidelines for the Implementation of the Housing Selling Price System".

building costs under the implementation guidelines shall be used, and the upper limit price of the construction costs under the implementation guidelines shall not be the area of the housing supply.

Special repair reserve to be accumulated by the defendant because it is required to be calculated by the exclusive area.

Of the apartment of this case, the public rental part of the apartment of this case excluding the area for public use.

The exclusive use area shall be based on the exclusive use area, and 2 The guidelines for the foregoing implementation alone shall be calculated as reserves for special repair.

If the housing supply area cannot be viewed as the exclusive use area, the common use area, incidental facilities and welfare facilities;

The special repair reserve fund shall be calculated on the basis of the area of such reserve.

3. Accumulation of special repair reserve - Existence and scope of duty of transfer

A. Whether Article 17-2 of the former Rental Housing Act is applied

1) The old Housing Construction Promotion Act concerning the business of constructing public-sale housing on March 31, 1995

After obtaining approval for a housing construction project plan pursuant to Article 33, the former Rental Housing Act enters into force, 197.

11. Housing construction concerning a project to newly build part of the above apartment units as a public rental housing;

The facts that the business plan was approved are as mentioned above.

2) Although it is based on the form of a modified housing construction project plan, the following:

Comprehensively taking into account the circumstances, the portion of the apartment in this case to be used as a special repair reserve for 827 households;

In this regard, Article 17-2 of the former Rental Housing Act is considered to apply.

A) Article 33(1) of the former Housing Construction Promotion Act

A person who intends to construct or create a site in excess of the area prescribed by Presidential Decree shall operate a business plan.

The Minister of Construction and Transportation shall prepare a plan and obtain the approval of the Minister of Construction and Transportation.

In this case, "not to change any matter" is also the same, and according to this, it is also the same.

There is an essential difference in the approval of a project plan, or in the approval of a modification of a project plan or its substance;

shall not be deemed to be a party.

B) Article 2 of the Addenda to the former Rental Housing Act provides that "The amended provisions of Articles 15 and 17-2 of the former Rental Housing Act shall apply to this Act."

Construction by obtaining approval of a business plan under Article 33 (1) of the Housing Construction Promotion Act for the first time after

Since the term "the foregoing business plan" only provides for the purpose of applying from the rental housing, the term "the old housing construction" is the case of the old housing construction.

Approval of a business plan under the main sentence of Article 33 (1) of the New Promotion Act and approval of modification of a business plan after the same paragraph.

shall be deemed to be included.

C) For the Defendant to construct some of the instant apartment units as public rental housing units:

In principle, approval of a new project plan shall be obtained, but the existing public for procedural convenience

A business plan on November 7, 1997 only changed the form of changing the approval of a business plan for housing units to be sold, and the plan on November 7, 1997

The approval of modification is the first approval of the project plan with respect to the construction of new public rental housing in substance.

It can be seen that they were.

D) Main facilities under Article 38-2 of the former Housing Construction Promotion Act.

regulations to collect and accumulate special repair reserve funds required for the replacement and repair from occupants;

against the fact that there was no special repair reserve scheme in respect of rental housing.

Repair report in cases of conversion for sale in lots without smooth opening and repair of major facilities of large housing;

Since there were many disputes about the scope of number, the former Rental Housing Act 196.

12. Special cases concerning rental housing by newly establishing Article 17bis with the amendment of 30.30

The duty to reserve the repair reserve shall be granted, thereby preventing the early deterioration of rental housing;

It is intended to resolve the inconvenience of the carers and prevent disputes at the time of conversion for sale in lots.

However, a special case of changing to a rental house according to a modified housing construction project plan.

State that had been sold at the time of the previous approval of the project plan unless it is included in the reserve for repair;

The home is not only a special repair reserve under the former Housing Construction Promotion Act, but also a special case under the former Rental Housing Act.

A security for the replacement and repair of the main facilities of rental housing due to the failure to accumulate the special repair reserve fund;

There is a risk that the legislative intent of Article 17-2 of the former Rental Housing Act will be dismissed.

E) Part of the sales housing after the enforcement of Article 17-2 of the former Rental Housing Act, including the Defendant

Where a modification of a housing construction project plan to be modified is obtained, it shall comply with the said provisions.

The imposition of the special repair reserve fund was possible, and the rental business operator is a special repair appropriation in the rent.

Since there is room to impose and collect gold, an offense subject to Article 2 of the Addenda to the former Rental Housing Act, which is a transitional provision.

In addition, the approval for the change of the housing construction plan that changes part of the housing unit into rental housing; and

(b) the rental business operator who is obligated to accumulate the reserve fund for special repair and maintenance;

The prohibition of retroactive legislation is not against the principle of prohibition of retroactive legislation.

B. Whether the defendant's duty to accumulate the special repair reserve has become impossible to perform the duty

special repair reserve to be accumulated under the Rental Housing Act by the rental business operator is required to be accumulated therein.

The Rental Housing Act and subordinate statutes, regardless of whether the rental business operator has actually accumulated or not;

the amount calculated in accordance with such standards shall be transferred to the council of occupants' representatives after conversion into sale.

Court Decision 2012Da1573 Decided March 28, 2013 (see Supreme Court Decision 2012Da1573, Mar. 28, 201). Special repair appropriation by rental business operators as above

The duty to transfer money is deemed to be a statutory obligation that is specifically imposed on the rental business operator under the Rental Housing Act and subordinate statutes.

in light of the fact that the subject matter is money and can not be an impossible performance of the obligation.

In this regard, even if the defendant did not accumulate the reserve fund for special repair, the special number is required due to such failure.

It cannot be said that the performance of the obligation to transfer the reserve fund has become impossible.

Therefore, the plaintiff can seek the payment of the special repair reserve for the defendant, and the defendant's rejection thereof.

(2) the payment of the reserve fund for special repair as the performance of the legal debt itself.

As such, the defendant's above assertion is without merit on different premise.

C. Calculation of appropriation reserve funds to be transferred by the defendant to the plaintiff

(i) the completion date of the duty to accumulate the special repair reserve;

A rental business operator shall make special repairs under the former Rental Housing Act before a rental house is converted into parcelling-out.

The obligation to accumulate the money is to be borne, but the whole or part of the rental housing has been converted;

from that time to that time, the management entity under the former Housing Construction Promotion Act shall provide special repairs from the sales household units.

The liability to collect and accumulate the gold, and the special repair reserve fund under the former Rental Housing Act shall be the rental business.

standards prescribed by the Rental Housing Act and subordinate statutes, regardless of whether the person has actually accumulated as a project undertaker;

The council of occupants' representatives shall be liable to hand over the amount calculated by conversion to the sale of goods after conversion.

L. Special repair reserve funds under the former Housing Construction Promotion Act shall be the owner or occupant of a household by the rental business operator.

It is merely a management entity that acts as a substitute for the meeting of the representatives and that it is in fact accumulation of such collection.

It is obligated to hand over the borrowed money only if there is the established money (Supreme Court Decision 2012Da2012 Decided March 28, 2013).

1573. Therefore, a rental business operator shall sell a rental house prior to the date of conversion of the sale of the rental house in lots.

The duty to transfer special repair reserve funds to the council of occupants' representatives after the conversion of sale pursuant to statutes.

(2) the Corporation.

In this case, the defendant's conversion of the part of the apartment of this case among the apartment of this case around July 2003 into sale.

The fact is as seen earlier, and thus, the defendant's accumulation of special repair reserve funds under the former Rental Housing Act.

The termination period of obligations is June 30, 2003.

(ii) the area of the housing subject to calculation of the special repair reserve;

"Housing supply area", which serves as the basis for calculating reserves for special repair, shall be both the whole oil area and the area for public use.

As such, (see Supreme Court Decision 2012Da101312 decided March 28, 2013) the light of this case

the housing supply area subject to the calculation of the special repair reserve to be accumulated by the defendant shall be earlier.

public rental part 827 households' housing supply area, 74, 82M, 054

3)Calculation of appropriation reserve funds for special repairs;

A) The following facts are acknowledged or described in Gap evidence 4, 12, and Eul evidence 1:

In full view of the purport of the entire pleadings, it may be recognized.

○ The housing supply area of 827 households among the apartment buildings of this case: 74, 054m2

The total underground area: 11, 158 square meters: 62, 896 square meters: 62, 688 square meters ( = Housing supplied area - 11, 158 square meters - Total underground area - 132 square meters on 158 square meters): 6,0194 square meters [total underground area 11, 158 square meters - (total ground area 62, 68 square meters x 1/155, 68 square meters on 896 square meters; 40 square meters on 68 square meters on 84 square meters; 40 square meters on 68 square meters on 896 square meters; 5 square meters on 60 square meters on 15,000 square meters; 64 square meters on 15,000 square meters on 84 square meters on 15,000; 360 square meters on 25, 208) of the former Enforcement Rule of the Rental Housing Act]

B) Based on this, the amount of the special repair reserve to be accumulated by the Defendant is calculated.

amount shall be 522, 233, 231 won.

(1) Special repair reserve fund of more than 173, 288, 206, 11, 206 (1), 39, 383, 48, 386, 262 won ( = 74, 81, 818, 288, 200, 200, 18, 36, 400, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 500, 506, 17, 500 (2)

(3) Total amount of standard construction costs: 38, 642, 861, 724 = ① 2 + (2) from August 3, 200 to October 102: Special repair reserve fund of KRW 292, 912, 878 ① 11, 592, and 858 ( = Total amount of standard construction costs 38, 642, 861, 724 x 3/10, 00, 00) ② 29, 28, 38, 478 won = 292, 47, 360, 28, 360, 28, 478

D. Sub-committee

Therefore, the defendant's total amount of the above special repair reserve funds to the plaintiff 522, 233, 231 won and the plaintiff

From January 1, 2004, the following day after the management duties are transferred to Gohap, the existence and crime of the Defendant’s obligation to perform;

The year prescribed by the Civil Act until November 28, 2014, which is the date of the imposition of a judgment at the court of a substantial level to dispute above.

5%, 20% per annum under the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment.

The person shall be liable to pay damages for delay calculated at a rate.

4. Judgment on the defendant's defense

A. The defendant's defense

1) The Plaintiff and the Defendant on December 31, 2003, when acquiring and transferring the management of the instant apartment on December 31, 2003.

Expenses incurred in the repair and maintenance of the apartment management of this case by the plaintiff shall be borne by the tenant.

agreement was made by the plaintiff to implement the special repair reserve. The agreement was made by the plaintiff to the defendant.

It is an agreement that does not intend to make any payments for special repair and maintenance, so the defendant's accumulation and transfer of appropriation reserve funds.

Now has ceased to exist.

2) Also, the Plaintiff’s claim for appropriation reserve against the Defendant was extinguished by prescription as follows:

A) The defendant is obligated to accumulate special repair reserve funds for the portion of public rental among the apartment of this case

Since it was known that there was no accumulation, the plaintiff was not accumulated in the defendant.

(2) The transfer or payment of the special repair reserve itself, and the non-performance of the duty to accumulate shall be

the claim for damages due to the tort is only entitled to claim damages, and the above claim for damages is avoided by the plaintiff.

December 31, 2003, which became known of the occurrence of the loss due to the failure to receive the special repair reserve from the High Court.

After the expiration of the three-year statute of limitations, the statute of limitations has expired.

B) The period of extinctive prescription of the Plaintiff’s special repair allowance claim is stipulated in Article 64 of the Commercial Act

The Commercial Limitation Period shall be five years after the application of the Commercial Limitation Period, and the plaintiff shall pay the defendant the special appropriation reserve fund to the defendant.

on December 1, 2011, 5 years have passed since the filing of the instant lawsuit. The instant lawsuit was filed

Therefore, the Plaintiff’s above claim expired by prescription.

C) Even if the period of extinctive prescription of the Plaintiff’s special repair reserve claim is ten years, small and medium

Do Do filed the instant lawsuit from December 1, 201 to 10 years prior to the filing of the instant lawsuit by the Plaintiff

The part of the special repair reserve fund claim was extinguished by prescription.

B. Determination

1) Whether the obligation to accumulate the special repair reserve by agreement has ceased to exist

A) According to Gap evidence No. 12, management prepared on December 31, 2003 between the plaintiff and the defendant according to Gap evidence No. 12

(e) Of the business transfer and takeover books, the representative of occupants in the column for the burden of additional facility expenses after transfer.

The meeting and the Dong Delegation Agency shall repair the house and the joint incidental facilities after the acquisition.

Additional facility investment expenses due to the maintenance and the enactment or amendment of Acts and subordinate statutes shall be borne by occupants.

section 3 of the agreement drawn up at the time of transfer and takeover of the above management affairs.

“Do” shall take over the housing and the joint incidental facilities in the state of the Defendant’s transfer, and the person

additional facility investment cost due to repair, maintenance, and enactment or amendment of Acts and subordinate statutes arising after such

state that "the plaintiff shall carry out at the expense of the tenant" is recognized.

(c)

B) However, special repair reserve funds of a rental business operator under the former Rental Housing Act are leased.

A national resident by preparing for the implementation of a long-term maintenance plan for housing and preventing the deterioration of a building;

It shall be mandatory to be accumulated by the rental business operator in order to promote the stability of activation.

Therefore, when the plaintiff and the defendant take over and take over the management affairs, the purchase of the apartment of this case after the acquisition thereof.

Maintenance expenses incurred in repairing and maintaining goods, and additional facility investment expenses due to the enactment, amendment, or repeal of Acts and subordinate statutes shall be admitted.

Even if an agreement was reached on the State’s charge, such circumstance alone may constitute an agreement

The obligation of the Defendant to collect and accumulate the special repair reserve legally borne by the Defendant as the managing body, and this obligation.

due to the waiver, etc. of the right to the plaintiff's special repair reserve;

shall not be deemed to have extinguished.

2) Whether the statute of limitations has expired

A) Whether short-term extinctive prescription is applied to three years

As seen earlier, the Plaintiff’s claim of this case is a lessor under the former Rental Housing Act.

discharge of the obligation to hand over the special repair reserve fund as a matter of course to the defendant

on a different premise, it is not a claim for damages due to a tort.

The Defendant’s short-term extinctive prescription of three years for damage claim arising from the legal act shall apply.

The above assertion is without merit without further review.

B) The period of extinctive prescription of claims for special repair reserve fund and whether the prescription expires

(1) The Defendant’s duty to accumulate and transfer special repair reserve funds for the Plaintiff is related to the former Rental Housing Act, etc.

The provisions of the laws and regulations are legal obligations that require the defendant to bear, and between the plaintiff and the defendant

obligations arising out of or similar to a commercial activity, or obligations deemed to be modified or modified;

The council of occupants' representatives of apartment buildings may not be regarded as non-existent, and the council of occupants' representatives of apartment buildings shall be

claim shall be deemed to have the need to be resolved promptly to the same extent as the commercial transaction relation.

in light of the fact that there is no reasonable ground for the Plaintiff’s appropriation reserve for the Defendant.

The period of extinctive prescription of a claim should be 10 years as provided by Article 162(1) of the Civil Act.

(2) The extinctive prescription is from the time when a right arises objectively and is able to be exercised.

Until they are in progress and are unable to exercise their rights, so that they are not in progress, the Rental Housing Act

Article 17-2 (2) 'The rental business operator shall sell constructed rental housing after the expiration of the mandatory rental period.

Article 38 of the Housing Construction Promotion Act of the special repair reserve accumulated pursuant to paragraph (1).

the first time to the council of occupants' representatives organized by the

Therefore, the council of occupants' representatives, such as the Plaintiff, should only move after the apartment of this case was sold.

(1) The plaintiff's special repair reserve funds may be claimed for the payment of the special repair reserve funds.

The extinctive prescription of the claim can only run on July 2003, where the apartment of this case was converted into sale.

The Plaintiff’s instant lawsuit, however, must be deemed to have lapsed 10 years, counting from the lawsuit.

Since the plaintiff was filed on December 1, 201, the previous claim for special repair reserve against the defendant was partially made.

shall not be deemed to have expired even if the statute of limitations has expired.

C) Therefore, the Defendant’s assertion of extinctive prescription is without merit.

5. Conclusion

Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remainder

The claim is dismissed due to the lack of reason, and the judgment of the court of first instance has partially different conclusions and is unfair and reasonable.

As above, the defendant's appeal partially accepted and the judgment of the first instance is modified as above. It is so ordered as per Disposition.

this decision is delivered.

Justices Kim Jin-jin

Judge Lee Young-young

Judges Hong Young-young

1) The above housing supply area is included in total at least, and the Enforcement Rule of the former Rental Housing Act (Ordinance of the Ministry of Construction and Transportation No. 165 of January 28, 1999) (No. 165 of the Ministry of Construction and Transportation)

According to Article 3-3(d)(1)(d) of the [Attachment 2] 2-3(d)(d) of the Act, a person authorized to approve project plans shall be included in the first announcement of invitation of residents from the person authorized to approve project plans.

In the case of installing underground floors or underground parking lots that are not included in the housing supply area and housing site area for each household approved;

80 percent of the standard construction cost for the area can be recognized as the construction cost, only to the household;

The Enforcement Rules of the former Rental Housing Act, since there is no provision on the underground floor or underground parking lot included in the area of supply of each house;

Article 3-3 (1) [Attachment I] 2-D. (1) (i) of the Ministry of Construction and Transportation as amended by Ordinance of the Ministry of Construction and Transportation No. 253 on August 3, 2000] Before the enforcement of Article 3-3 (1) [Attachment I]

Before August 3, 2000, the total standard construction cost shall be calculated by applying 100% of standard construction cost per square meter.

2) As sought by the Plaintiff, two construction works consisting of 15 or less floors with the lowest standard construction cost among the public rental portion of the instant apartment complex.

The calculation shall be based on 531,818 won, which is a ceiling on non-limit price (won/land size). The same shall apply hereinafter.

3) Article 15-3(3)3 of the former Enforcement Decree of the Rental Housing Act (amended by Presidential Decree No. 17737 of September 11, 2002)