(영문) 서울중앙지방법원 2016.12.16. 선고 2016가합504402 판결

(b) a warehouse of the part on board which connects each point of Annex 1, 2, 3, 4, and 1 in sequence among the second underground floors, the part on board which connects each point of Annex 5, 6, 7, 8, 9, 10, 11, 12, and 5 of the same drawings, the part on board which connects each point of Annex 1, 13, 14, 15, 16, 17, 18, and 13 of the same drawings in sequence, and the part on board which connects each point of Annex 19, 20, 21, 22, and 19 of the same drawings;

(c) A warehouse in the order of each point listed in the separate sheet No. 1, 2, 3, 4, 5, 6, and 1, among the third underground floors, that connects each point listed in the separate sheet No. 7, 8, 9, 10, 11, 12, 17, 14, 15, 16, 17, 18, 19, 20, 20, 22, 23, 24, 25, 22, and 22 in the order of priority among the points listed in the separate sheet No. 3;

(d) A warehouse of a part inside a ship which connects points in sequence of the items indicated in the annexed drawings 1, 2, 3, 4, 5, 6, and 1 among the four underground floors, in the order of each point indicated in the annexed drawings 1, 7, 8, 9, 10, 11, 12, 17, 14, 15, 16, 17, 18, 19, 20, 20, 22, 23, 24, 25, and 22 in the order of priority among the items listed in the annexed drawings 4;

(e) Parts that occur in a ship which connects points of the separate 5 drawings among the five underground floors in sequence, in the order of describing 1,2,3,4, and1 points of the annexed 5 drawings, part of the warehouse which connects each point of the same drawings to 5,6,7,8,9,10,10,00 in the same drawings, part of the warehouse which connects each point of the same drawings, 11,12,13,14,15,16,11 of the same drawings, part which connects each point of the warehouse with 17,18,19,20,21,222, 23, 24, 17, 34, 47, 34, 47, 47, 47, 47, 34, 47, 47, 47, 47, 39, 47, 47, 47, 47, 47, 47, 3944, 17

(f) Parts inside a ship which successively connects each point of Annex 1, 2, 3, 4, 1 of Annex 6 drawings among the six underground floors, part of a warehouse that connects each point of Annex 5, 6, 7, 8, 9, 10, 5 of the same drawings, part of warehouse that connects each point of Annex 1, 12, 13, 14, 15, 16, 17, 11 of the same drawings, part of warehouse that connects each point of Annex 1, 18, 19, 20, 21, 22, 23, 24, 18 of the same drawings, part of warehouse that connects each point of Annex 1, 25, 26, 27, 28, 25 of the same drawings, part that connects each point of Annex 5, 29, 30, 31, 329, 30, 29-17;

(g) Parts inside a ship which connects each point of the annexed Table 7 drawings Nos. 1, 2, 3, 4, and 1 in sequence among the seven underground floors, part of a warehouse which connects each point of the annexed Table 7 drawings Nos. 5, 6, 7, 8, 9, 10, 10, and 5, and part of a warehouse which connects each point of the same drawings No. 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 20, 23, 24, 25, 27, 28, 29, 30, 32, 34, 35, 32 and 11 in sequence, and each part of a warehouse which connects each point of the same drawings No. 11, 12, 32, 34, 325, and 323 in sequence;

No person shall engage in any and all activities related to the use of a lease contract, collection of rent, etc.

2. The defendant shall not engage in any act related to lease, such as entering into a lease contract, collection of rent, fees, etc., with respect to the surrounding land other than the real estate site listed in the attached Form 8 list among three parcels of land, such as the Seoul Jung-gu, Seoul, D, and E

3. The costs of lawsuit shall be borne by the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. The plaintiff's status

The building of "F on the 16th floor size" (hereinafter referred to as the "land in this case") of the 7th underground floor and the 16th floor size of the ground of Jung-gu Seoul, Jung-gu, Seoul (hereinafter referred to as the "land in this case") is an aggregate building composed of stores, officetels, etc., and the plaintiff owns Nos. 424, 425, 426 and 387 among the buildings in this case.

B. The defendant's establishment process, etc.

1) At the time of sale of the instant building, G Co., Ltd. (hereinafter “G”) completed the instant building around August 2008 and completed the registration of ownership transfer for each store, officetel, etc. of the instant building to the buyer from the end of November of the same year.

2) After that, under the Act on the Management and Ownership of Aggregate Buildings (hereinafter “Act”), H was appointed from the assembly of the open management body around February 21, 2009 to all sectional owners of the instant building as the manager of the instant building. The regulations of the management body of the instant building were enacted.

3) The members of the management committee of the instant building management body determined that the instant building management body was a non-corporate body, and a separate corporation is necessary to conduct tax affairs, such as the issuance of tax invoices for profit-making business, and decided to incorporate a profit-making corporation or a company at the meeting of the management committee on March 4, 2009 and March 16, 2009, and on May 12, 2009, the Defendant (i) who was a stock company for the purpose of managing and operating the instant building, was changed to the present trade name at the time of its establishment).

The Defendant’s articles of incorporation, in principle, stipulated that the manager of the management body of the instant building should concurrently serve as the representative director, but H is undergoing litigation related to the instant building. As such, the management committee of the management body of the instant building was appointed as the Defendant’s representative director. The Defendant’s representative director appointed J as the Defendant’s representative director. On August 4, 2009, the Defendant’s representative director and the Defendant’s manager of the instant building agreed on the following (hereinafter “instant business division agreement”).

1. “A” (Manager H refers to A) shall perform the duties of the Manager in accordance with the F Management Rules; 2. “B” (Defendant refers to Defendant) shall perform the duties of the Manager in accordance with the F Management Rules; 2. “B” (hereinafter referred to as “B”) shall, for the F Management Body’s performance of the duties, meet the requirements for the legal personality among the objectives of the articles of incorporation of the Bank in charge of the F Management Body; (a) the duties of entering into an external contract determined by the F Management Body as prescribed by the Management Rules; or (b) the duties of the F Management Body’s financial account; and

D. The defendant's management of the building of this case and the lease of official warehouse

피고는 2009. 5. 12.경 설립될 무렵부터 현재까지 관리비 부과·징수 등 이 사건 건물 관리단의 업무를 수행해 왔는데, 현재 피고 명의로 이 사건 건물의 공용부분인 이 사건 건물의, 1) 지하 1층 중 별지1 도면 표시 1, 2, 3, 4, 5, 6, 1의 각 점을 순차로 연결한 선내 가 부분 창고, 2) 지하 2층 중 별지2 도면 표시 1, 2, 3, 4, 1의 각 점을 순차로 연결한 선내 가 부분 창고, 같은 도면 표시 5, 6, 7, 8, 9, 10, 11, 12, 5의 각 점을 순차로 연결한 선내 나 부분 창고, 같은 도면 표시 13, 14, 15, 16, 17, 18, 13의 각 점을 순차로 연결한 선내 다 부분 창고, 같은 도면 표시 19, 20, 21, 22, 19의 각 점을 순차로 연결한 선내 다 부분 창고, 3) 지하 3층 중 별지3 도면 표시 1, 2, 3, 4, 5, 6, 1의 각 점을 순차로 연결한 선내 가 부분 창고, 같은 도면 표시 7, 8, 9, 10, 11, 12, 13, 7의 각 점을 순차로 연결한 선내 Q 부분 창고, 같은 도면 표시 14, 15, 16, 17, 18, 19, 20, 21, 14의 각 점을 순차로 연결한 선내 다 부분 창고, 같은 도면 표시 22, 23, 24, 25, 22의 각 점을 순차로 연결한 선내 라 부분 창고, 4) 지하 4층 중 별지4 도면 표시 1, 2, 3, 4, 5, 6, 1의 각 점을 순차로 연결한 선내 ㉮ 부분 창고, 같은 도면 표시 7, 8, 9, 10, 11, 12, 13, 7의 각 점을 순차로 연결한 선내 나 부분 창고, 같은 도면 표시 14, 15, 16, 17, 18, 19, 20, 21, 14의 각 점을 순차로 연결한 선내 다 부분 창고, 같은 도면 표시 22, 23, 24, 25, 22의 각 점을 순차로 연결한 선내 라 부분 창고, 5) 지하 5층 중 별지5 도면 표시 1, 2, 3, 4, 1의 각 점을 순차로 연결한 선내 ㉮ 부분 창고, 같은 도면 표시 5, 6, 7, 8, 9, 10, 5의 각 점을 순차로 연결한 선내 내 부분 창고, 같은 도면 표시 11, 12, 13, 14, 15, 16, 11의 각 점을 순차로 연결한 선내 부분 창고, 같은 도면 표시 17, 18, 19, 20, 21, 22, 23, 24, 17의 각 점을 순차로 연결한 선내 라 부분 창고, 같은 도면 표시 25, 26, 27, 28, 25의 각 점을 순차로 연결한 선내 마 부분 창고, 같은 도면 표시 29, 30, 31, 32, 29의 각 점을 순차로 연결한 선내 마 부분 창고, 같은 도면 표시 33, 34, 35, 36, 37, 38, 39, 40, 33의 각 점을 순차로 연결한 선내 자 부분 창고, 같은 도면 표시 41, 42, 43, 44, 41의 각 점을 순차로 연결한 선내 아 부분 창고, 같은 도면 표시 45, 46, 47, 48, 45의 각 점을 순차로 연결한 선내 자 부분 창고, 같은 도면 표시 49, 50, 51, 52, 49의 각 점을 순차로 연결한 선내 ☞ 부분 창고, 6) 지하 6층 중 별지6 도면 표시 1, 2, 3, 4, 1의 각 점을 순차로 연결한 선내 가 부분 창고, 같은 도면 표시 5, 6, 7, 8, 9, 10, 5의 각 점을 순차로 연결한 선내 나 부분 창고, 같은 도면 표시 11, 12, 13, 14, 15, 16, 17, 11의 각 점을 순차로 연결한 선내 다 부분 창고, 같은 도면 표시 18, 19, 20, 21, 22, 23, 24, 18의 각 점을 순차로 연결한 선내 라 부분 창고, 같은 도면 표시 25, 26, 27, 28, 25의 각 점을 순차로 연결한 선내 마 부분 창고, 같은 도면 표시 29, 30, 31, 32, 29의 각 점을 순차로 연결한 선내 마 부분 창고, 7) 지하 7층 중 별지7 도면 표시 1, 2, 3, 4, 1의 각 점을 순차로 연결한 선내 ㉮ 부분 창고, 같은 도면 표시 5, 6, 7, 8, 9, 10, 5의 각 점을 순차로 연결한 선내 마 부분 창고, 같은 도면 표시 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 11의 각 점을 순차로 연결한 선내 다 부분 창고, 같은 도면 표시 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 22의 각 점을 순차로 연결한 선내 라 부분 창고, 같은 도면 표시 32, 33, 34, 35, 32의 각 점을 순차로 연결한 선내 마 부분 창고(이하 위 각 창고를 일괄하여 '이 사건 창고'라고 한다)를 이 사건 건물 입점 상인들 등에게 임대하여 그 보증금과 임대료를 지급받고 있고, 별지8 도면 표시와 같은, 원고를 포함한 이 사건 건물 구분소유자들이 각 구분소유하는 점포와 오피스텔의 소유권대지권의 목적인 이 사건 토지 중 이 사건 건물 부지 외 부분(이하 '이 사건 건물 주변토지'라고 한다)에 상인들이 매대를 놓고 영업을 할 수 있도록 임대하여 그 사용료 내지 임대료를 지급받고 있다.

E. The defendant's registration of superstore change and report of superstore manager

1) According to the Distribution Industry Development Act, G has completed the registration of establishment of a superstore on September 16, 2008 with respect to the "business site area of this case" 5,809.82m (the underground 4 stories and the ground 9 stories) among the buildings of this case, and the store area 23,564.49m (hereinafter "the store of this case") on September 16, 2008 with respect to the store of this case under the same Act, G has acquired the authority to operate and manage the building of this case from G to the head of Jung-gu Seoul Special Metropolitan City on July 8, 2009, on the ground that he/she applied for the registration of change of the superstore with respect to the store of this case from G to the defendant on July 29, 2009.

2) Meanwhile, on September 4, 2013, the Defendant obtained a certificate from the head of the Gu of Seoul Special Metropolitan City (the superstore manager 2) and is currently a superstore manager with respect to the store of this case.

F. Provisional disposition related to the status of the manager of the instant building and the progress of the lawsuit

1) On February 7, 2015, the election commission affiliated with the instant building management body held the fourth manager election that the Plaintiff and K et al. left as the manager candidate and publicly announced that K was elected as the manager on March 5, 2015.

2) On April 28, 2015, the Plaintiff filed an application with K for a provisional disposition of suspending the performance of duties by the Seoul Central District Court 2015Kahap300, and on April 28, 2015, the Plaintiff received a provisional disposition of suspending the performance of duties that “K shall not perform its duties as the manager of the management body of the instant building until the final and conclusive judgment of the principal case of confirming abandonment or management of 2014Kahap7829 from the Seoul Central District Court 2015.” At that time, K was appointed as the manager of the management body of the instant building (hereinafter “the acting manager of the instant case”).

3) Meanwhile, the Plaintiff filed a lawsuit against the management body of the instant building and K to seek confirmation of the absence of the status of the manager of the instant building as Seoul Central District Court 2015Kahap7829. On July 15, 2016, K did not resign from the office of the defendant representative director and went out even though it is disqualified under the election management regulations, and there is procedural defect that does not give the above manager the opportunity to exercise written voting rights to the sectional owners of the instant building.” On the ground that the above manager did not have any procedural defect, K accepted the Plaintiff’s claim against the management body of the instant building, “K does not confirm that it is not in the position of the management body of the instant building.” Accordingly, Seoul High Court 2016Na20574 decided that the instant management body of the instant building is still pending in the appellate trial.

G. Progress of dispute regarding the management of common areas of the instant building

1) On February 12, 2016, an acting manager of the instant case filed an application for permission of acts outside the ordinary course of business with the Seoul Central District Court 2016BS7, and was determined by the said court that “The instant custodian’s acting manager is permitted to enter into a lease contract with the EPDC Co., Ltd. and the instant building underground parking lots and ancillary facilities.”

2) Meanwhile, around November 16, 2015, around February 19, 2016, and around March 2, 2016, the instant administrator’s acting director sent a public notice to the Defendant stating that “The Defendant shall report the status of management, such as the lease contract and related income, with respect to the section for common use of the instant building.” However, on March 4, 2016, the Defendant sent a public notice to the instant administrator’s acting manager, without complying therewith, taking into account the fact that the Defendant was recognized as the management fee imposition and operating status of the commercial building in the instant case and provisional disposition.”

3) On March 15, 2016, the acting administrator of the instant case sent an official letter stating that “The Defendant would directly conclude a new and renewed contract, etc. for the section for common use, such as the warehouse, office, etc., of the instant building, and the Defendant would not participate in it.”

(h) Relevant statutes and the regulations of management body;

The provisions of the Aggregate Buildings Act, the regulations of the management body of the building of this case, and the Enforcement Rules of the Distribution Industry Development Act are as follows.

(2) The term "site use right" means the land on which one building to which the section for exclusive use belongs and the land which becomes the site of a building pursuant to Article 4, and the land which is the site of a building pursuant to Article 3, paragraphs (2) and (3) of the same Article. The term "site use right" means the right of the sectional owner to own the section for exclusive use. Article 10 (Reversion of Section for Common Use, etc.) and (1) belongs to the co-ownership of all sectional owners: Provided, That the section for common use which is obviously provided for public use by only some sectional owners (hereinafter referred to as the "section for partial common use") belongs to the co-ownership of that sectional owner. (2) With respect to co-ownership under paragraph (1), the Act may be determined otherwise by the regulations and regulations of the management committee under Articles 11 through 18 (2) and (3):

(3) Where a management committee is established pursuant to paragraph (1), a manager shall undergo a resolution by the management committee to conduct an act falling under any subparagraph of Article 25 (1): Provided, That this shall not apply to the matters otherwise prescribed by the regulations; Provided, That this shall not apply to the matters prescribed by the regulations of the management committee; the management service company ( shopping mall management service company); the management service company which vicariously manages the buildings of this case means the management service company which vicariously manages the buildings of this case;

A person shall be appointed.

A person who intends to open a large-scale store under Article 8 (Registration and Change of Large Store, etc.) (1) of the Distribution Industry Development Act, or to open a quasi-large store in a traditional commercial preservation area under Article 13-3 shall register with the Special Self-Governing City Mayor or the head of a Si/Gun/Gu, along with a business district impact assessment report and a regional cooperation plan before commencing the business. The

(1) Article 12 (Duties, etc. of Operators of Large Store, etc.) (1) An opener of a superstore, etc. shall perform the following duties.

(1) A person who has opened a superstore, etc. pursuant to Article 12 (3) of the Distribution Industry Development Act shall submit a report on the management of a superstore, etc. in attached Form 4 to the Mayor of a Special Self-Governing City, or the head of a Si/Gun/Gu within 20 days from the date of performance of his/her duties, along with the documents falling under each of the following subparagraphs:

[Ground of recognition] Facts without dispute, significant facts in this court, Gap evidence Nos. 1, 3 through 7, 9 (including each number, if any, including numbers; hereinafter the same shall apply), Eul evidence Nos. 1 through 6, and 9 through 11, the fact inquiry into Eul by this court, and the purport of the whole pleadings

2. The allegations and judgment of the parties

A. The parties' assertion

1) The plaintiff's assertion

The warehouse of this case and the land surrounding the building of this case belong to the co-ownership of the sectional owners of the building of this case. The defendant exercises the right to lease the warehouse of this case and the land surrounding the building of this case. The plaintiff, as a sectional owner of the building of this case, claims a prohibition against all acts related to lease in the warehouse of this case and the surrounding land of this case against the defendant based on the real right claim

2) The defendant's assertion

The Defendant was authorized to manage the warehouse of this case and the surrounding land of the building of this case through the agreement on the division of the business of this case and the resolution of the management committee of the management committee of the building of this case over several occasions. Unless the management committee of the management committee of the building of this case did not pass a resolution on the division of the warehouse of this case and the surrounding land of the building of this case as management committee, the Defendant has the right to manage the warehouse of this case and surrounding land of this case.

In addition, the defendant, as a superstore manager under the Distribution Industry Development Act, leases the warehouse of this case, which is the section for common use, and appropriate the rent paid to the unpaid management expenses of the building of this case. Since the above lease acts conflict with the exercise of sectional ownership or infringe upon sectional ownership, the defendant has a right to manage the warehouse of this case and the surrounding land of this case.

On the other hand, the surrounding land of the building of this case is an open land donated to the State for the convenience of citizens, not the common area of the building of this case.

B. Determination

1) Determination as to the cause of claim

In the aggregate building, where a third party illegally occupies the site or attached facilities of the building that belongs to the section for common use or the co-ownership of the sectional owner, the legal relation that the third party unlawfully occupied the site or attached facilities is not the legal relation that belongs to the sectional owner's collective ownership, but the right of co-ownership, such as the section for common use, etc., is based on the right of common use, etc., and thus, the sectional owner may file such a lawsuit first or all of them (see, e.g., Supreme Court Decision 2003Da1777

The facts that the plaintiff is the sectional owner of the building of this case, the defendant paid the deposit money and rent for the lease of the warehouse of this case, which is the section for common use of the building of this case, and the fact that the defendant, such as the plaintiff, etc. leased the land around the building of this case, which is the object of the ownership right of the building of this case and the owner of the building of this case, and received rent or rent for the lease of the land of this case, which is the object of the ownership right of the building of this case. Thus, unless there are special circumstances, the plaintiff, who is entitled to exercise the right to claim for removal of interference or prevention of interference based on the right to co-ownership as to the warehouse of this case and the surrounding land of this case which is the common use area of the building of this case and the owner of the building of this case, can seek a prohibition of the act related to the lease of the warehouse of this case and the surrounding land of this case, and therefore, the defendant is not obligated to do all acts related to the lease of the building of this case and the surrounding land of this case.

2) Determination as to the Defendant’s assertion that the management authority of the instant building was delegated by the management body of the instant building

In light of the above facts and the following circumstances, Gap evidence No. 6, Eul evidence No. 6, Eul evidence No. 8, and evidence No. 9, which can be acknowledged by comprehensively taking account of the overall purport of pleadings, i.e., "the defendant's external conclusion of contracts" and "the affairs delegated to the defendant through the process of resolution of the management body of the building of this case" are deemed to be in charge of the defendant's activities. Accordingly, in order to delegate the affairs of the management body of the building of this case to the defendant or the manager of the building of this case, it is necessary to follow the resolution of the management body of this case or other procedures corresponding thereto. (2) However, even if the defendant did not have any influence on the establishment of the management body of the building of this case to the defendant's disposal committee of the warehouse of this case and neighboring land of this case, it cannot be seen that the defendant was legally entrusted with the authority of the management committee of this case to the defendant to manage the building of this case by the resolution of this case No. 8-1 or 7).

3) Determination as to the defendant's assertion that the superstore manager has independent management authority

The Distribution Industry Development Act grants a general authority on the maintenance and management of a superstore to a superstore manager established by a large-scale store manager who is not a management body under the Act on the Ownership and Management of Aggregate Buildings, but provides for the "matters related to the separate ownership" to the management of a superstore in accordance with the provisions of the Act on the Ownership and Management of Aggregate Buildings, such as regulations established by a management body which is the organization of sectional owners or a resolution of a management body meeting. Therefore, considering the legislative purport of the Distribution Industry Development Act and the relationship with the Act on the Ownership and Management of Aggregate Buildings, the term "matters related to the separate ownership" excluded from the duties of a large-scale store manager is construed as the matters that may conflict with the exercise of the ownership of a large-scale owner or infringe on the ownership of a sectional owner if permission is granted to a superstore manager or a manager of a large-scale store among the maintenance and management affairs of a large-scale store (see, e.g., Supreme Court Decision 2007Da

However, even if the defendant acquired the status of superstore manager under the Distribution and Development Act regarding the building of this case, and the warehouse of this case and the land surrounding the building of this case were leased and appropriated for unpaid management expenses, the above facts recognized and the whole purport of the pleadings No. 4 and No. 8 can be considered as identical to the owner of the building of this case, namely, the fact that the person liable to pay the management expenses of the building of this case cannot be said to be identical to the owner of the building of this case, the management expenses of some stores are normally paid, and as seen above, the defendant did not comply with the request to report the lease contract and related revenue status of the manager acting for the manager of this case, it is reasonable to deem that the act of collecting the lease and rent related to the building of this case of this case and the building of this case is related to sectional ownership that conflict with the exercise of ownership by the owner of the building of this case, or that it should be delegated by the resolution of the management body or the meeting of the management body. Therefore, the above assertion is without merit.

4) Sub-determination

Therefore, the Defendant is obligated not to perform any act related to the use of the lease contract, collection of rent, etc. with respect to the warehouse of this case, and is obliged not to perform any act related to the lease, such as lease contract, collection of rent, and fees, with respect to the land surrounding the building of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Judges

The presiding judge, senior judge and prosecutor;

Judges Kang Han-chul

Judges Tae-young

Note tin

1) '34' written in the amended claims is clear that it is '33'.

2) See Article 6(2) of the Enforcement Rule of the Distribution Industry Development Act, supra.

3) Article 43 of the Building Act (Securing Open Space for Public Purposes)

(1) An open area or open space for resting facilities in a small area shall be installed in buildings, the use and scale of which are prescribed by Presidential Decree, in accordance with the standards prescribed by Presidential Decree, so as to develop pleasant environments for a region falling under any of the following subparagraphs, so as to allow the general public to use them:

1. General residential area and quasi residential area:

2. Commercial area:

3. Quasi industrial area;

4. An area designated and publicly announced by the Special Self-Governing City Mayor, Special Self-Governing Province Governor, or the head of a Si/Gun/Gu