[1] Whether the management rules of multi-family housing that stipulate that a person who acquired apartment ownership succeeds to the obligation of delinquent management expenses of the former owner (negative)

[2] The meaning and validity of Article 9(4) of the Decree on the Management of Multi-Family Housing is effective for the successor to the status of the tenant

[1] The provisions of the rules on collective housing management that require the successor, regardless of intention, good faith, or bad faith, to bear the delinquent management expenses of the former tenant, shall comply with the principle of proportionality required as a limitation on fundamental rights under the Constitution, in that the successor may incur property damage to the property of the former tenant. From this point of view, in light of the provisions of the above rules on collective housing management, there is a need to ensure the efficient management of the collective housing through the efficient collection of management expenses and to protect the interests of the majority of the residents, even though the above provisions are justifiable, the above provisions cannot be deemed as being justified unless they are succeeded to the delinquent management expenses, and there is no institutional device that allows the successor to inform the former tenant of the delinquent management expenses in advance and there is no limit on the amount of the delinquent management expenses, so it does not meet the adequacy of the means to achieve the above purpose, and thus, it does not violate the principles of proportionality as well as the principles of proportionality that are necessary in excess of the principles of good customs and good customs of the Civil Act.

[2] The provisions of Article 9(4) of the Decree on the Management of Multi-Family Housing, which have the effect of the management rules for multi-family housing, are effective for the successor to the status of the tenant, and the contents of the management rules for multi-family housing concerning the management, use, etc. of multi-family housing are also effective for the successor in order to maintain the order of community life and improve the residential life, and in relation to the management fees, the provisions do not mean that the successor shall pay the management fees under the management rules for multi-family housing, and in accordance with such provisions, the successor shall not be construed to have succeeded to the delinquent management fees for the former tenant, and if the obligation for the former tenant is interpreted to have been succeeded to under the provisions of the Decree on the Management of Multi-Family Housing, the provisions do not constitute unconstitutional provisions that excessively infringe the successor's property rights by deviating from the proportionality

[1] Article 103 of the Civil Act, Articles 23 and 37 of the Constitution, Article 9 of the Decree on the Management of Multi-Family Housing / [2] Article 9(1) and (4) of the Decree on the Management of Multi-Family Housing, Article 23(37 of the Constitution

Kim U.S. Kim

Non-Party Apartment Resident Representatives Association

Seoul District Court Decision 99Na206858 delivered on November 2, 1999

Supreme Court Decision 2000Da34822 Delivered on October 27, 2000

1. Of the original judgment, the part against the plaintiff falling under the order to pay is revoked.

2. The Defendant shall pay to the Plaintiff 1,840,727 won and the amount equivalent to 5% per annum from August 31, 1999 to May 17, 200, and 25% per annum from May 18, 200 to full payment.

3. The plaintiff's remaining appeal is dismissed.

4. Of the total litigation costs, 10% is the Plaintiff’s and the remainder is each borne by the Defendant.

5. Paragraph 2 can be provisionally executed.

The defendant shall pay to the plaintiff 2,012,040 won and 25% interest per annum from the day following the delivery of the complaint to the day of complete payment.

1. Basic facts

The following facts do not conflict between the parties, or can be acknowledged by adding up the whole purport of the pleadings to the statements in Gap evidence 2, 3, 4, Eul evidence 1, and Eul evidence 2-1 to 4, and there is no counter-proof.

(a) On February 22, 1999, the plaintiff was awarded a successful bid of (name omitted apartment) No. 612 204 dong-dong (hereinafter referred to as "the apartment of this case") located in Gangseo-gu Seoul Metropolitan Government on April 7, 199 and paid the price in full and completed the registration of ownership transfer on the 23th of the same month.

B. On July 199, the Plaintiff attempted to move to the apartment of this case. The Defendant, which is in charge of managing the (name omitted) apartment of this case’s apartment, should pay the apartment management fee in arrears for non-party 1, the former owner of the apartment of this case pursuant to the apartment management rules set by the said apartment occupants, while preventing the Plaintiff from entering into the company unless the Plaintiff pays it.

C. Accordingly, on July 3, 1999, the Plaintiff paid 2,012,040 won for the delinquent management expenses for the period from January 1, 1998 to July 1 of the same year to the Defendant on July 3 of the same year, and was appointed as the instant apartment on July 4, 199.

2. Provisions of Acts and subordinate statutes and the management rules;

A. Article 9(1) of the Decree on the Management of Multi-Family Housing, which is a Presidential Decree enacted pursuant to delegation of the Housing Construction Promotion Act, provides that "the occupants, etc. of multi-family housing shall set up the management rules for multi-family housing concerning the management or use of multi-family housing (hereinafter referred to as the "management rules")." Article 9(3)3 of the same Decree provides that "the management rules shall include the methods for calculating, collecting, keeping, depositing, and depositing the amounts to be borne by each household of occupants, etc., management expenses, user fees, and special repair reserve fund, and measures against those who have not paid the fees," and Article 9(4) of the same Decree provides that "the

(b)The above (name omitted) Rules for the Management of Multi-Family Housing (hereinafter referred to as the "Management Rules in this case") established in accordance with the provisions of the Decree on Multi-Family Housing (hereinafter referred to as "the Management Rules in this case") provide that "the Management Rules in paragraph 1 of Article 6 shall also have effect on any successor to the status of the tenant", while Article 13, Paragraph 1 of Article 13 provides that "the Management Rules shall also have effect on any successor to the status of the tenant".

3. The parties' assertion

(a) Original height;

(1) Since the plaintiff was successful at the auction procedure, the plaintiff's acquisition of the ownership of the apartment of this case is not the acquisition by succession, but the original acquisition by the plaintiff, and therefore Article 13 (1) of the Management Rules providing that the plaintiff may exercise the management expenses claim against the successor to the status of the tenant does not apply to the plaintiff.

(2) Even if not, in light of the legal principles of the assumption of an obligation under the Civil Act that a successor to the status of an occupant cannot take over another person's obligation without the consent of the parties, the foregoing management rules apply only to cases where the successor to the status of an occupant has expressed or implied consent to take over the obligation to pay the management expenses of the former owner, and there is no such consent.

(3) Therefore, even though the Plaintiff is not liable for the delinquent management expenses incurred before the Plaintiff acquired the ownership of the apartment in this case, the Plaintiff would have been forced by the Defendant to prevent the Plaintiff from entering the apartment in this case without paying them, and thus, it would have been forced to return it as unjust enrichment against the Defendant.

(b) Sponsor;

(1) Since the plaintiff's acquisition of the apartment of this case by the successful bid succeeded to the status of the tenant of the apartment, the defendant may exercise the plaintiff's right to the delinquent management fee of Tae Tae-ro, who is the former tenant, in accordance with the above apartment management Decree and the management rules of this case.

(2) Article 13(1) of the instant management rules provides for the purpose of protecting the interests of the majority of the occupants through efficient management of multi-family housing. Article 9(2) of the Decree on the Management of Multi-Family Housing provides that the management rules shall be established by agreement of a majority of the occupants and shall be amended with the consent of a majority of the occupants, thereby realizing the autonomous management by a majority of occupants. In light of the purport of Article 13(1) of the instant management rules, it shall not be deemed that a successor to the status of an occupant is liable

(3) Furthermore, the fact that the public nature of the management fee has the public nature and the applicant for the successful bid has not confirmed whether the management fee was delinquent and the successful bid has been made is erroneous and it is impossible to process the apartment without succession to the liability for the delinquent management fee.

4. Determination

A. Whether the Plaintiff constitutes a successor to the status of the apartment occupant of the instant apartment

Since the acquisition of ownership by auction is not the original acquisition but the acquisition by succession, the plaintiff constitutes the above multi-family housing management Decree and the management rules of this case. Therefore, according to Article 13(1) of the management rules of this case, it seems that the plaintiff bears the duty to pay the delinquent management expenses of the ship-only ship, which is the former occupant, to the defendant.

B. Whether Article 13(1) of the Management Rules is valid

The provisions of Article 13(1) of the instant Management Rules, which require a successor, regardless of intention, good faith, or bad faith, to bear the delinquent management expenses of all of the successors, shall comply with the principle of proportionality required as a limitation on fundamental rights under the Constitution, in that the successor may cause damage to his property, and that, so, the restriction on fundamental rights, such as property rights, does not infringe on the essential elements of the right. (1) The intended purpose of the achievement is justifiable, (2) the proper method is to achieve the above purpose, (3) only the necessary minimum restriction is required, and (4) the public interest to be achieved through this and the damages suffered by the parties should be balanced.

From this point of view, when examining Article 13(1) of the Management Rules of this case, it is necessary to ensure the efficient management of multi-family housing and to protect the interests of the majority of the residents through the efficient collection of management expenses, even if there is room to view that the provisions are justifiable, it cannot be said that unless the management expenses in arrears are succeeded to, it is impossible to process them unless there is any institutional device that allows the successor to know in advance of the management expenses in arrears and there is no limit on the amount of the succeeded management expenses in arrears. In addition, allowing the successor to succeed to the management expenses in arrears, regardless of the intention of the successor, his good faith, or bad faith, is not sufficient as a means to achieve the above purpose, and it also infringes on the essential contents of the property rights of the successor by deviating from the proportionality principle as a limitation on fundamental rights.

As a result, the above provision is not only an unconstitutional provision that excessively infringes on the property rights of successors in violation of the principle of proportionality required under the Constitution, but also is contrary to the principle of private autonomy, so it shall not be effective as it violates the good morals and other social order stipulated in Article 103 of the Civil Code.

C. Interpretation of the Decree on Management of Multi-Family Housing

On the other hand, Article 9(4) of the Decree on the Management of Multi-Family Housing provides that the management rules are effective for the successors to the status of the occupants, and Article 6(1) of the Management Rules also provide that the aforementioned provisions are effective for the occupants of multi-family housing to maintain the order of community life and improve their residential life, and it is interpreted that the contents prescribed by the Management Rules on matters such as the management, use, etc. of multi-family housing are also effective for the successors, and in relation to the management fees, the successor shall pay the management fees in accordance with the Management Rules, and it shall not be construed that the successor succeeds to the delinquent management fees for all the occupants under the same provision. If the management rules of multi-family housing are interpreted to have succeeded to the delinquent management fees for all the successors under the above Decree on the Management of Multi-Family Housing, the above provisions of the Decree on the Management of Multi-Family Housing do not excessively violate the fundamental rights of the successors by deviating from the proportionality principle as a limitation of fundamental rights due to the same reason as seen earlier.

D. Establishment and scope of claim for return of unjust enrichment

Therefore, the defendant, even though there is no legal basis for exercising his claim against the plaintiff for the delinquent management expenses of the training paths, is unable to enter the apartment complex of this case and forced the plaintiff to pay it to the defendant without any legal ground. Thus, the defendant has a duty to return the unjust enrichment to the plaintiff.

Therefore, we examine the scope of the apartment of this case. Since the plaintiff completely paid the successful bid price of this case from January 1, 1998 to April 7, 1999, the plaintiff disposed of the ownership of the apartment of this case on that day, the management fee after that day shall be liable to the plaintiff. Thus, it shall be limited to the management fee before April 6, 1999, which can be claimed as unjust enrichment against the defendant. According to the evidence evidence Nos. 2 and 3, the management fee for the period from January 1, 1998 to July 1, 1999, the amount equivalent to the period from April 1, 1998 to April 7, 199, 199 to April 6, 199, 4, 196, 196, 194, 2, 2,040 won and 1,84,720 won of the management fee for the period from January 1, 199 to July 4, 198.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 1,840,727 won as above and damages for delay at the rate of 5% per annum as stipulated in the Civil Act from August 31, 1999, which is the day following the delivery day of the complaint in this case, to May 17, 2000, which is deemed reasonable for the defendant to dispute about the existence and scope of the obligation to perform, and 25% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the full payment day. Thus, the plaintiff's claim in this case is justified within the extent of the above recognition, and the remaining claims shall be dismissed for this reason. Since the judgment of the court below is unfair, the part corresponding to this part against the plaintiff in the judgment of the court below shall be revoked, and the payment of the above amount shall be ordered to the defendant, and the remaining appeal of the plaintiff shall be dismissed as it is so decided.

Judges Goi-Dung (Presiding Judge)