In case where several persons violate the Building Act in the section for common use among the buildings under sectional ownership, whether the entire building shall be deemed to be a non-violationed building under Article 42 of the Building Act (affirmative)

In order for several persons to determine whether buildings in partitioned ownership are in violation of the Building Act Article 42 of the Building Act, it is a principle to determine whether each section which is the object of divided ownership violates the Building-related Act. However, the corridor, stairs, and other sections of the building that lead to several sections for exclusive use, which are provided to all or some of the sectional owners, can not be the object of divided ownership, and the section for common use belongs to the sharing of all the sectional owners. As such, if there is a violation of the Building-Related Act to the section for common use which does not have independence in structure and use, and if there is a violation of the Building-Related Act to the section for exclusive use which does not think

Article 42 of the Building Act, Articles 3(1) and 10(1) of the Multi-Unit Residential Building Act

Attorney Seo-dae, et al., Counsel for the defendant-appellant

The head of Yongsan-gu

Seoul High Court Decision 89Gu11017 delivered on March 23, 1990

The judgment of the court below is reversed.

The case is remanded to Seoul High Court.

The grounds of appeal No. 2 are examined first.

According to the records, the building of this case partitioned by 14 persons, including the plaintiffs, was used as an amusement restaurant, such as dico clubs, without permission for change of the purpose of use, and the building of this case was used as an entertainment restaurant without permission for use as of November 16, 1988. The building of this case, which was owned by 14 persons including the plaintiffs, was used as an entertainment restaurant, and the building of this case, which was installed in the parking facilities such as the first floor of Yongsan-gu, Yongsan-gu, Seoul, 7-37-37 and 961-6 square meters, and the first floor (sales facilities), 593.36 square meters, 3 square meters, 24.7 square meters, and 24.7 square meters (parking facilities, electricity rooms, etc.) from among the building of this case, which was installed in the parking facilities such as the first floor of this case, but did not correct the violation as a whole, Article 42 of the Building Act.

According to the reasoning of the judgment below, the court below determined that the building constitutes a non-compliant building under Article 42 (1) of the Building Act is reasonable for each sectional owner based on the building subject to sectional ownership. Since the building in this case under the divided ownership of the plaintiffs does not constitute a violation under the Building Act, it cannot be deemed that the building in this case also constitutes a non-compliant building, even if there exists a violation under the Building Act, such as the first basement and the fifth, sixth, and tenth floors different from the building in this case

However, in the case of the so-called sectional ownership in which several persons own a part of each building separately, it is in principle to determine whether each part of the building is in violation of the Building Relations Act for each section which is the object of sectional ownership. However, even in such a case, the corridor, stairs leading to several sections for exclusive use, and the sections provided to all or some of the sectional owners in the structure of the structure, such as corridors, stairs, which lead to several sections for exclusive use, may not be the object of sectional ownership (Article 3(1) of the Multi-Unit Residential Building Act), and the section for common use belongs to the co-ownership of all the sectional owners (Article 10(1) of the Multi-unit Residential Building Act). As such, if there is any violation of the Building Relations Act for the section for common use that cannot be considered separately from the section for exclusive use because it does not have independence

In this case, it cannot be concluded that the building itself does not violate the Building-Related Act, including the section for exclusive use, without examining the relationship between the building, particularly the parking lot of the second floor, and the passage and operation of the facility, and the parking path and the carp facilities, which are not owned as common areas, and whether there is no violation of the Building-Related Act without examining whether the parking lot of the second floor and the underground is in operation.

Nevertheless, without examining the above point, the court below concluded that there was no violation in the building of this case without examining it. Thus, the court below did not err in the misapprehension of legal principles as to sectional ownership or violation building. The ground for appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)