Plaintiff (Appointed Party)

○○ apartment council of occupants’ representatives (Law Firm Domestic, Attorney Lee Jong-ho, Counsel for the plaintiff-appellant)

Daejeon District Court Decision 2014Gaso357981 Decided July 9, 2015

April 7, 2016

1. The plaintiff (appointed party)'s appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff (Appointed Party).

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff (appointed party; hereinafter referred to as the "Plaintiff") 1,029,920 won, △△△△△△△, 1,273,610 won, 876,209 won, and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The Plaintiff, the △△△△△△, and △△△△ (hereinafter “Plaintiff, etc.”) are the occupants who resided in the ○○ apartment located in Daejeon-gu, Daejeon-gu, Daejeon, a multi-family housing under the Housing Act (hereinafter “instant apartment”). The Defendant is an organization consisting of the occupants of the instant apartment, and is a management body under the Act on Ownership and Management of Condominium Buildings.

B. The apartment of this case was supplied with electricity as a "comprehensive contract method" in relation to the supply of electricity, and the council of occupants' representatives of the apartment of this case entered into a contract with the Korea Electric Power Corporation on July 30, 2002 with the Korea Electric Power Corporation to supply electricity. Around 2003, the name of the contract was changed from the Defendant to the head of the management office.

C. In the electricity supply method, the term “comprehensive contract method” means imposing and collecting electricity charges calculated by applying the unit cost of low voltage for housing use to the volume of electricity used for common use, and the unit cost of high voltage for the volume of electricity used for common use. The term “one-time contract method” does not distinguish the volume of electricity used for each household and the amount calculated by dividing the total volume of the apartment used for common use by the number of households, and then then adding and collecting the amount calculated by multiplying the unit cost of the apartment by the number of households to the apartment management entity. The term “all-time contract method” means imposing and collecting the amount calculated by applying the unit cost of high voltage for housing use by the number of households. In the case of low voltage for residential use and high voltage for residential use, the accumulated rate of low voltage for residential use is higher than

D. The Korea Electric Power Corporation imposed electric charges on the entire apartment complex with the notice of the charge for housing (the exclusive household portion, the general public, and the elevator) and the notice of the fee for street lamps, and the notice of the charge for industrial use. In collecting the “electric charges on the entire apartment complex” from around the date of the contract to July 2014, the Defendant collected the “electric charges on the entire apartment complex” for the entire apartment complex from around the date of the contract to the date of the contract. The electricity charges for each household are collected by applying the low-tension unit price to the volume of electricity used for housing, and the common electricity charges were collected from the relevant household by dividing only the elevator electricity charges for each household, and the remaining industrial electricity charges and street lamps were not included in the management expenses.

E. The relevant provisions of the Housing Act, the Enforcement Decree of the Housing Act, and the management rules of the instant apartment (hereinafter “instant management rules”) are as follows.

(i) The Housing Act;

Article 45 (Payment, Disclosure, etc. of Management Expenses, etc.)

(1) Residents and users of multi-family housing falling under Article 43 (1) (hereinafter referred to as "multi-family housing subject to compulsory management") shall pay management expenses incurred in the maintenance and management of the multi-family housing to the management entity.

(2) Matters necessary for the details, etc. of management expenses under paragraph (1) shall be prescribed by Presidential Decree.

(3) The management entity of multi-family housing under paragraph (1) may vicariously pay user fees, etc. prescribed by Presidential Decree for occupants and users to persons entitled to receive such user fees, etc.

2) Enforcement Decree of the Housing Act

Article 57 (Criteria for Management Rules)

(1) The criteria for the management rules to be determined by the Mayor/Do Governor pursuant to Article 44 (1) of the Act shall include the following matters. In such cases, matters that infringe on fundamental rights of persons other than occupants, etc. of multi-family housing shall not be

11. Methods of calculating the amounts to be borne by each household of management expenses, etc. and procedures for collection, keeping, deposit and use;

Article 58 (Management Expenses, etc.)

(3) "User fees, etc. prescribed by Presidential Decree" in Article 45 (3) of the Act shall be as follows:

1. Electricity rates (including the electricity rates for the joint-use facilities);

3) The instant management rules

Article 53 (Responsibility and Duties of Managing Body)

(1) A management authority shall have the responsibility and duty to execute its affairs as a good manager.

(2) Where the management entity and its employees have inflicted damage on occupants, etc. or a third party by intention or negligence in connection with their affairs, they shall be liable to compensate for such damage.

Article 61 (Methods for Calculating Charges Borne by Household)

(1) The method of calculating the amount to be borne by each household of fees for joint facilities shall be as specified in attached Table 5.

(2) The user fees under the subparagraphs of Article 58 (3) of the Decree on behalf of the management entity for the convenience of occupants, etc. shall be as specified in attached Table 6.

The charges to be borne by each household of the table items included in the main sentence shall be comprised of electricity charges to be used in auxiliary facilities and welfare facilities, such as boiler, water pumps, fire pumps, street lamps, underground parking lots and management offices, which are the central heating system, all machinery charges and common facilities for the electricity of the same household unit, and the actual expenses incurred for each month shall be allocated according to the housing supply area.* Electrical charges for general use, industrial use, street lamps shall be divided, but elevator electric charges shall be excluded, and elevator electric charges shall be divided for each unit (if any measuring instrument is installed separately for each Dong), with the exception of not more than two floors for each unit before the entrance.

1. Calculation method of the amount to be borne by each household in the table included in the main text; 1. Only multi-family housing for which the management body collects electricity charges from occupants, etc. and pays electricity charges to the Korea Electric Power Corporation, the monthly amount used by each household shall be calculated in accordance with the terms and conditions of the electricity supply of the Korea Electric Power Corporation.* The management body selects a payment method favorable to occupants, etc. from among the "comprehensive contract apartment (house pressure) or a single contract apartment (house pressure)" and concludes a contract with the Korea Electric Power Corporation. The KBS receiving fees that are integrated and notified by the Korea Electric Power Corporation and the Korea Electric Power Corporation shall be calculated separately from electricity charges.

F. After concluding a single contract between Korea Electric Power Corporation and the Korea Electric Power Corporation, the Defendant decided to impose a house-to-house unit price when imposing the house-to-house unit price, and thereafter, at the ordinary meetings of January 20, 2010 and the ordinary meetings of February 14, 2013, the agreement with the Korea Electric Power Corporation was maintained in the same way as the previous one, and each household has decided to apply the unit price of the house-to-house unit price.

G. At the Defendant’s temporary meeting held on April 10, 2013, the method of imposing electricity rates was decided to re-examine the same rate when applying the low-tension unit price and high-tension unit price for the preceding household of the instant apartment complex in March 2013. On May 2, 2013, the amendment of the management rules was decided to review and propose the amendment so that the low-tension unit price for the housing can be applied at the temporary meeting, notwithstanding the “short-term contract method,” but it was rejected as a result of obtaining the consent of the occupants from May 5, 2013 to May 7, 2013. As a result, on May 15, 2013, the regular meeting made a resolution to delete the matters related to the electricity for the household unit price at issue within the previous management rules and to obtain the consent of occupants in writing, and to impose the high-tension unit price for the housing unit price at the regular meeting on November 21, 2013.

[Ground for Recognition] Unsatisfy, Gap evidence 1-1, 2-1, 4-2, Gap evidence 11-1, 2-1-2, Gap evidence 21-5, Gap evidence 25, Gap evidence 26-1 through 7, Eul evidence 1-1, Eul evidence 2-2, Eul evidence 6-1, 7-2, Eul evidence 7-1, 2-8, Eul evidence 9-1, 2-2, and Eul evidence 10, the purport of the whole pleadings, and the purport of the whole pleadings

2. Judgment as to the primary cause of claim

A. Summary of the plaintiff's assertion

1) The Defendant, who deals with the business of settling and settling the electricity rates on behalf of the Defendant, has multi-family housing occupants pay the amount according to the quantity of electricity used by the Defendant, which is the charge actually paid to the Korea Electric Power Corporation for each household, and has a duty to ensure that the remainder of the common electricity rates is not infringed upon the legitimate interests of the occupants by allowing them to pay the total amount divided according to the area supplied by each house. Nevertheless, the Defendant collected the excess by applying the low-tension unit price to the electricity rates for each household of the Plaintiffs and then appropriated the amount collected in excess as a joint electricity fee. Accordingly, the Defendant’s violation of the above duty constitutes a tort. Accordingly, the Defendant asserts that, in applying the above duty, the Plaintiff, etc. suffered property damage equivalent to the difference between the electricity rates for each household and the high-tension unit price for each house used by the Plaintiff, etc., and at the same time, the Plaintiff should compensate for the damages (to the extent that mental damage is not recognized as property damage).

2) In addition, although the electricity charges paid by the Defendant to the Korea Electric Power Corporation include the electric charges used in the apartment of this case by the Korea Digital Satellite Broadcasting and CMV Broadcasting, the Defendant did not impose a separate electric charges on each of the above companies (hereinafter referred to as “outside companies”) and transferred them to the occupants including the Plaintiff, etc., as such conduct constitutes intentional or negligent tort, the Defendant is liable for damages.

3) Since the Nonparty, the representative of the Defendant, filed the instant lawsuit against the Plaintiff on or around June 2014, the purport to recognize and recognize the Plaintiff, the Defendant’s denial of liability for damages constitutes a violation of the principle of trust protection or an abuse of rights.

B. Whether liability for damages was established

1) Determination on the application of the low-tension unit cost for housing

In light of the following circumstances, the above facts and the evidence revealed above, Gap evidence 14-1, 2, Eul evidence 3-1, Eul evidence 4-1, Eul evidence 4-1, and Eul evidence 5-2 can be seen as tort even if the defendant entered into a supply contract under a single contract with the Korea Electric Power Corporation, and applied the low-tension unit price for housing in calculating the supply unit price for each household after calculating the supply unit price for each household under a single contract with the Korea Electric Power Corporation, it is difficult to view that tort is established, and there is no other evidence to prove otherwise.

A) The Defendant concluded a contract on the electrical use of the “short-term contract method” with the Korea Electric Power Corporation as a unit of an electricity use contract, and thus, the high-tension unit price for the housing under the “short-term contract method” is only the method of imposing the electricity charge applied between the Defendant and the Korea Electric Power Corporation, and there is no provision between the Defendant and the Plaintiff, etc. as to how to divide the electricity charge for each household into the electricity charge for each household and the joint electricity charge imposed on the entire apartment of the instant apartment in accordance with any standard.

B) The “comprehensive contract method” collects the electricity charge calculated by applying the unit price for the housing usage volume to the housing usage volume, and the general high voltage rate to the common use volume to the housing usage volume. The Defendant collected the electricity charge for each household by applying the unit price for the housing usage volume to the housing usage volume, and the joint electricity charge for each household was collected from the relevant household only among the elevator electricity charges (hereinafter “instant imposition method”). Therefore, the occupant of the apartment building of this case including the Plaintiff et al. applied the instant imposition method, compared to the application of the instant imposition method, the occupant of the apartment building of this case, including the Plaintiff et al., obtained benefits equivalent to the remaining joint electricity charge after deducting the elevator electricity charge.

C) The sum of the electricity charges collected by the Defendant from the instant apartment occupants, including the Plaintiff, does not exceed the electricity charges imposed and paid by the Korea Electric Power Corporation.

D) Article 61(1) and attached Table 5 of the instant management rules stipulate that joint electricity charges shall be apportioned monthly costs according to housing supply area. However, according to the “short-term contract method”, the Defendant pays electricity charges to the Korea Electric Power Corporation by applying high-tension rates applied to the entire quantity of apartment used without distinguishing the quantity of electricity used for each household and the quantity of electricity used for common use, and by applying the progressive system to the entire quantity of apartment used. In applying the “comprehensive contract method,” the calculation of the “actual cost” by multiplying the quantity of electricity used for common use by the unit price of high-tension rate for the general use, but in applying the “short-term contract method,” it is difficult to view that there is a clear standard for calculating the “actual cost” solely based on the content stipulated in the instant management rules.

E) Article 61(2) and attached Table 6 of the instant management rules stipulate that “The monthly volume of electricity for each household shall be calculated in accordance with the terms and conditions of the electricity supply of the Korea Electric Power Corporation.” However, the Korea Electric Power Corporation’s guidelines for processing charges also stipulate that the allocation of electricity for each household in apartment units shall be in principle dealt with in accordance with the rules of the customers’ autonomy, etc., and do not provide any separate detailed criteria for calculation (Meanwhile, the Plaintiff asserts that the above provision provides that the monthly amount of electricity for each household shall be calculated by multiplying the monthly amount of electricity for each household by the high pressure rate per house, and the Defendant merely provides the criteria for calculating the amount of electricity for each household. As alleged by the Plaintiff, it is unclear whether the above provision provides that the amount of electricity for each household shall be calculated by multiplying the monthly amount of electricity for each household by the high pressure rate per house by the amount of electricity for each household,

F) In the case of the instant apartment, electricity charges were reduced compared to the application of the single contract method. In the context of applying the single contract method, the choice of the method of calculating the electricity charges and the joint electricity charges for each household is ultimately a matter of how to distribute the benefits derived from the saved electricity to the occupants of the apartment complex. As such, when a certain method is selected, a specific household gains profits and the remaining households are considered to suffer losses, compared to the case where another method is selected. Therefore, the choice of a specific method is legitimate, and the choice of a different method is not illegal, and it is difficult to readily conclude any one of the most reasonable method in the situation where the progressive system is applied to the unit price.

G) As such, in applying the instant management rules, it is difficult to see that the method of calculating the electricity and the joint electricity for each household is clearly defined in the application of the instant management rules, and it cannot be readily concluded that it is the most legitimate method, it is difficult to deem that there was a duty of care to have been paid to the Defendant by selecting a method different from the instant method of imposition.

H) Article 45(3) of the Housing Act and Article 58(3)1 of the Enforcement Decree of the Housing Act provide that the managing body may pay electricity charges, including “electric rates for facilities jointly used,” on behalf of the occupants. Thus, as asserted by the Plaintiff, it does not determine whether to impose excess electricity charges by comparing only the household electric rates applying the low-tension unit price for housing after excluding the common electricity charges, and the high-tension unit price for housing. Rather, when applying the low-tension unit price for each individual household when imposing the high-tension unit price for housing, the electricity charges for each household are large, but the common electricity charges are small, whereas when applying the high-tension unit price for housing, the common electricity charges for each household are high-priced unit price for each household, and thus, it cannot be readily concluded that the Plaintiff, etc. suffered damage by paying the high-tension unit price for each household, which is relatively low-tension unit price for each household, compared to the electricity charges for each household.

I) In applying the “short-term contract method”, the households using less electricity will contribute to the reduction of the total electricity rates that the Defendant pays to the Korea Electric Power Corporation. However, in applying the low-tension unit price to the calculation of the total electricity rates for each household in allocating the total electricity rates for each household to the Korea Electric Power Corporation, the share of the common electricity rates is lower, and thus, the benefit from the reduction of the electricity rates is equally returned to the entire household. However, in applying the high-tension unit price for the residential purpose, the households with less electricity consumption has increased the share of the common electricity rates, although they contributed to the reduction of the total electricity rates, while some households with less electricity consumption reduce the burden of the electricity rates. In order to avoid such unreasonable results, the Defendant calculated the electricity rates for each household according to the low-tension unit price for the residential purpose.

(j) Even if the Defendant paid the electricity charges to the Korea Electric Power Corporation pursuant to the Korea Electric Power Corporation’s Single Contract Form, in light of the foregoing, it is difficult to view that the Defendant applied the low-tension unit price for each household’s electric consumption in the apartment of this case, and thus contravenes the principle of employer burden and the principle of fair burden.

2) Determination on the part of the electricity fee used by an external company

A) According to the statements in Gap evidence Nos. 13, Gap evidence Nos. 15-1 through 3, Gap evidence No. 16, and Gap evidence No. 17, it is recognized that the defendant did not impose electricity charges on the co-receiving facilities of the Korea Digital Satellite Broadcasting Corporation established within the apartment complex of the instant apartment complex and the IMV equipment of IMV broadcast Co., Ltd.

B) Meanwhile, comprehensively taking account of the overall purport of the arguments in the statements in Eul evidence 11 and Eul evidence 12, the defendant entered into an agreement on September 18, 2009 with the establishment partner of the Korea Digital Satellite Broadcasting Co., Ltd. on installation and operation of satellite broadcasting services using the joint satellite broadcasting reception equipment, and agreed to provide the location of the joint satellite broadcasting reception equipment and electric source supply equipment without compensation. The contract period shall be three years, but the contract period shall be automatically extended under the same conditions unless the parties to the agreement did not notify the termination in writing three months prior to the expiration date of the contract period. The contract is automatically extended and maintained from that time. The defendant entered into a contract on the maintenance and repair of cable TV broadcasting organization and broadcasting equipment between the IMV Broadcasting Co., Ltd. and the Cable TV Co., Ltd., Ltd. on July 2014, the defendant agreed to use the electric power equipment to send the apartment broadcast within the premises and bear the burden of the power supply equipment used to the premises.

C) In full view of the above facts, the Defendant’s failure to impose electricity charges on the satellite broadcasting reception equipment and sMV broadcast of Korea Digital Satellite Broadcasting Co., Ltd. established within the apartment premises of the instant apartment does not constitute a tort under an agreement between the Defendant and the above external company. Moreover, since there is no evidence to acknowledge that the Defendant imposed the electricity charges used by the above external company on the Plaintiff, etc., this part of the Plaintiff, etc.’s assertion is without merit.

3) Determination on the violation of the principle of trust protection and abuse of rights

The non-party representative of the defendant is hard to believe that the plaintiff et al. filed a lawsuit in this case, which corresponds to the plaintiff's assertion that he would be recognized. The statement of No. 22, which corresponds to the plaintiff's assertion, is insufficient to recognize only the statement of No. 19-1 through 4, and No. 23, and there is no other evidence to acknowledge it. Thus, this part of the claim is without merit without any need to further

3. Judgment on the conjunctive cause of claim

A. The plaintiff's assertion

The defendant asserts that the plaintiff et al. should pay the electricity fee per household to the plaintiff et al. at the unit price of the low pressure rate for residential use, gain profits equivalent to the excess electricity fee paid without any legal cause, and return such profits to the plaintiff et al. in return for unjust enrichment.

(b) Markets:

1) As seen in the determination of the main claim above, with respect to the allocation of the electricity charges imposed on the entire apartment of this case to each household according to any criteria, there was no provision among the occupants including the defendant and the plaintiff, etc., and considering the whole purport of the arguments in the evidence No. 4-1, No. 2, No. 18-1, No. 2, No. 25, No. 26-1, No. 26-7, and No. 27, the defendant paid the joint electricity charges to the surplus derived from applying the low-tension unit price for housing from the occupants of the apartment of this case, and the remaining amount was managed as the amount of the provisional electricity charges by clearly stating the "electric difference unit price" in the balance sheet of the provisional electricity charges, and if the defendant was less than the electricity charges imposed on the whole apartment of this case imposed by the Korea Electric Power Corporation due to the use of the electricity for each household of this case, it can be acknowledged that the above amount was appropriated as the provisional electricity charges.

2) In light of the above facts of recognition, it is insufficient to recognize that the defendant obtained benefits without any legal ground and thereby caused damage to the plaintiff et al., and there is no other evidence to acknowledge it. This part of the plaintiff's assertion is without merit.

4. Conclusion

Therefore, the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Choi Jin-su (Presiding Judge)