The council of occupants' representatives of the Hanyang apartment (Attorney Cho Jong-soo, Counsel for the plaintiff-appellant)

Defendant (Law Firm Taeyang, Attorneys Ha Young-ju et al., Counsel for the defendant-appellant)

December 2, 2014

Suwon District Court Decision 2012 Ghana5121 Decided October 18, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 3,616,200 won with 20% interest per annum from the day following the delivery of the application for correction of the claim of this case to the day of complete payment (the plaintiff extended the claim in the trial).

1. Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the respective descriptions of Gap evidence 1 through 6, Gap evidence 20 through 30, and Gap evidence 32 through 35 (each number is included; hereinafter the same shall apply) and the whole purport of arguments.

A. The plaintiff is a local government consisting of the representatives of each building of Hanyang apartment (23 Dong-dong 1,362 households, hereinafter "the apartment of this case") located in Ansan-si, Ansan-si, and the defendant is a sectional owner under subparagraph 1 of the apartment of this case.

B. On June 2008, the Plaintiff entered into a contract with the new public company on June 27, 2008 for construction of removal of existing water supply pipes, alteration of heating pipes, etc. necessary for the alteration of heating systems, while the Plaintiff entered into a contract for construction work for the alteration of the district heating systems and replacement of heating pipes of the instant apartment to the new public company with the Plaintiff on July 27, 2008, with the consent of 957 households (70.26%) from among the aforementioned apartment residents 1,362 households (hereinafter “Yansan City Development”) to be supplied with integrated energy from the development of Ansan City, and the Plaintiff entered into a contract for construction work for the alteration of the district heating systems and replacement of heating pipes (hereinafter “the instant heating contract”).

C. According to the instant heating system alteration contract, the Plaintiff paid KRW 700 million out of the construction cost of the instant case to the new public in advance, and the remainder of the construction cost to the Plaintiff’s 1) ESCO funds and ESCO funds as loans received from financial institutions at an equal interest rate. Accordingly, the Plaintiff borrowed KRW 4,793,392,520 from the ESCO Funds Loan Service Co., Ltd. (hereinafter “IF Capital”), which is an ESCO Fund lending institution, and paid all the costs for changing the heating system of the instant case to the new public in advance.

D. On September 26, 2008, the Plaintiff filed an application for permission for acts with the Mayor of Ansan-si to change the heating method of the apartment of this case to the district heating, and obtained the permission from the Mayor of Ansan-si on October 9, 2008.

E. Around December 2008, a new public official completed the alteration project of the heating system of this case, and the development of the Ansan City also supplied the district heating energy to the apartment of this case from around that time.

F. From October 208 to September 2013, the Plaintiff paid each month the regional heating construction cost charges in accordance with the instant heating system alteration work for the development of Ansan City from October 2008 to September 2013, and completed its repayment in full. Around December 2008, the Plaintiff paid each month the balance of the heating system alteration work (hereinafter “the instant heating system alteration project”) in which the Plaintiff used the instant heating system alteration project (hereinafter “the instant policy funds”) that was financed by the Defendant as policy funds from October 2, 2008 to October 2014, the Plaintiff paid each KRW 66,813,410 each month from the date of Busan Capital to October 2, 2008.

G. Meanwhile, on December 15, 2008, the Plaintiff decided to impose the charges for local heating construction costs and the policy funds of this case, which are to be paid monthly installment through the council of occupants’ representatives, divided by the respective households’ area ratio (hereinafter “instant contributions”).

2. The plaintiff's assertion

As the management body under the Act on the Ownership and Management of Aggregate Buildings does not separately form the apartment in this case, the plaintiff, a council of occupants' representatives, has the nature of the management body under the Aggregate Buildings Act. Although the plaintiff did not meet the resolution requirements required for the alteration of common areas in the conclusion of the contract for the alteration of the heating system in this case, the validity of the contract for the alteration work occurred to the sectional owners due to the resolution of the council of occupants' representatives on December 15, 2008 or the ratification of the sectional owners of this case during the course of the lawsuit in this case, and accordingly, the plaintiff was granted the authority to collect and reimburse the share of this case arising from the above alteration contract from the sectional owners of the apartment in this case. Meanwhile, all of the sectional owners of the apartment in this case except the defendant paid the share of this case to the plaintiff. This is that the sectional owners, a member of the management body of the apartment in this case, implicitly or explicitly consented to the collection of the plaintiff'

Even if the plaintiff is not a management body under the Act on the Ownership and Management of Aggregate Buildings, the plaintiff entered into a contract to change the heating system of this case on behalf of the owner of the apartment of this case including the defendant, and the above alteration work does not go against the intention or interest of the owner of the above sectional ownership, and the defendant also agreed to the above alteration work, so the above alteration work contract entered into by the plaintiff constitutes a business management for the defendant, and the contract for the above alteration work constitutes an administrative management for the defendant. Thus, the plaintiff paid the district heating construction cost for the development of Ansan City in accordance with the above alteration work contract, and paid the policy fund of this case to the Gag Capital.

On the other hand, the defendant changed the heating system of the apartment of this case around June 2008, and around September 2008, expressed his/her consent in writing as to the continuation of the heating system alteration work of this case and the burden of construction expenses, and even before August 2009, paid the contributions of this case to the plaintiff, the defendant's failure to comply with the plaintiff's claim of the contributions of this case cannot be permitted as contrary to the good faith.

For the foregoing reasons, the Defendant is obligated to pay the instant contribution to the Plaintiff. The amount is KRW 11,721 per month in the case of the said district heating construction cost charges and KRW 52,447 per month in the case of the instant district heating construction cost charges. However, the Defendant did not pay each of the said contributions to the Plaintiff from September 2009. As such, the Defendant is obligated to pay to the Plaintiff the Plaintiff the sum of KRW 574,329 (monthly 11,721 x September 49 months from September 2009 to September 2013 when the reimbursement of the said district heating construction cost charges has been completed) of KRW 574,30 and KRW 3,041,926 (monthly 52,447 x 58 months from September 2009 to June 58, 2014).

3. Determination

A. Determination as to whether a claim based on the status of the managing body is a claim

If the relationship of divided ownership is established as to an aggregate building, at the same time, a management body is organized as an organization with the objective of implementing matters concerning the management of buildings, their sites and their accessory facilities as all sectional owners pursuant to Article 23(1) of the Aggregate Buildings Act, and if the manager is appointed in the resolution of the management body meeting, the manager may act on behalf of the management body in relation to the execution of the business (see Supreme Court Decision 2003Da1774, Jun. 24, 2003). However, the council of occupants' representatives is an organization under public law, which is composed of representatives elected in proportion to the number of households of each apartment building according to the relevant provisions such as Article 43 of the Housing Act and Article 50 of the Enforcement Decree of the Housing Act, and is distinguishable from that of a management body under private law, which is established automatically by all sectional owners. Thus, the council of occupants' representatives and the management body shall exist separately.

In addition, matters concerning the change of a common area, which is not a management of a common area of an aggregate building, can be decided by a resolution only by a sectional owner who shares a common area, i.e. a management body of an aggregate building, and the council of occupants' representatives cannot

According to the above facts, the alteration work of the heating system of this case includes not only the removal and replacement of the heating pipes corresponding to the common area of the apartment of this case, but also the conversion of the heating systems. Since the construction amount is 5.750 million won, the alteration work is about the alteration of the common area that substantially alters the form or utility of the common area in light of the structure, function, and usage of the heating systems, which are the common area of the apartment of this case, the alteration work is about the alteration of the common area in this case. This is about the matters related to the alteration of the common area that actually alters the form or utility of the apartment of this case, and there is a resolution of not less than 3/4 of the sectional owners and voting rights, or a written agreement of not less than 4/5 of the sectional owners and voting rights, or the decision is to be made by the resolution of the apartment management body of this case through an agreement of at least

Therefore, all rights and obligations arising from the establishment of the above alteration work contract by the written resolution of the sectional owners shall collectively belong to the apartment management body of this case comprised of all sectional owners.

However, as the council of occupants' representatives of apartments, the plaintiff is distinguished from the management body of the apartment of this case, which is established automatically by all sectional owners, and there is no assertion or proof as to the fact that the plaintiff acquired the claim for the contribution of this case from the management body. Thus, the plaintiff's claim of this case is merely a claim for the payment of the contribution of this case to the management body, which is another person.

Meanwhile, even if the above management body, which is the creditor of the above share of the co-owner, permits the debtor, the sectional owner, to provide the plaintiff with the above share of expenses, according to the written resolution of the sectional owner, the defendant does not have the obligation to pay the plaintiff the above share of expenses with the permission of the management body, even though the defendant, the debtor, with the permission of the management body, could be exempted from his obligation. The plaintiff does not have the obligation to pay the above share of expenses to the third party, and the third party does not acquire the above share of expenses. Thus, the council of occupants' representatives decided on December 15, 2008 to impose the share of expenses in this case according to the ratio of the size of each household, and the above management body confirmed the above contract in writing by its resolution, and the remaining sectional owners except the defendant paid the above share of expenses to the plaintiff cannot be said to have the obligation

Therefore, this part of the plaintiff's assertion is without merit.

B. Determination on the claim for reimbursement of expenses based on office management

In order to establish the management of affairs, it is necessary to first have the intention to transfer the affairs to another person, that is, the intention to manage affairs on behalf of another person (see, e.g., Supreme Court Decisions 94Da41072, 41089, Dec. 22, 1994; 2010Da25124, Jun. 10, 201). At the time of entering into the contract to change the heating system of this case, the Plaintiff’s intention is not the execution of affairs on behalf of the apartment management body of this case or the defendant who is one of the members of the apartment management body of this case or the council of occupants’ representatives, but it cannot be deemed that there was a management doctor because it had been managed with the intention to perform its affairs on behalf of the other person. Thus, this part of the Plaintiff’s assertion also does not need to further

C. Determination on the assertion of violation of the good faith principle

The circumstance that the Defendant consented to the process of changing the heating system of this case and the cost of construction in around August 2008, and paid the instant contributions to the Plaintiff by August 2009 does not seem to have violated the good faith principle on the ground that the Defendant did not comply with the Plaintiff’s claim for the instant contributions. Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

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

Judges Lee Jong-young (Presiding Judge) Lee Young-young's Award

1) The original ESCO refers to Enigy Syce’s disadvantaged, and enterprises specialized in energy saving. ESCO funds mean funds received from the Energy Management Corporation to establish an energy saving system, and then receive and redeem electricity usage fees, etc.