Whether the main sentence of Article 43(6) of the former Housing Act imposes on the council of occupants' representatives an obligation to succeed to the rights, obligations, etc. under a contract entered into with a third party in connection with the management of a collective housing (negative)

The main text of Article 43(6) of the former Housing Act (amended by Act No. 11061, Sep. 16, 2011; hereinafter the same) provides that a business entity and a new management entity shall transfer the management affairs in fact between the business entity and the new management entity, and it cannot be deemed that a provision imposing a duty on the council of occupants' representatives, which does not fall under the management entity prescribed in Article 2 subparag. 14 of the former Housing Act, to succeed to the rights, obligations, etc. under a contract entered into with

Articles 2 subparag. 14, 43(1), (3), and (6), 44(3), and 47(1) of the former Housing Act (Amended by Act No. 11061, Sep. 16, 201); Articles 49(1), 54(1), and 55(1) of the former Enforcement Decree of the Housing Act (Amended by Presidential Decree No. 23665, Mar. 13, 201);

Plaintiff (Counterclaim Defendant) and one other (Law Firm AB, Attorneys Yoon- Promotion et al., Counsel for the plaintiff-appellant)

Defendant (Counterclaim Plaintiff) 1

Defendant 2

Seoul High Court Decision 201Na85583, 2012Na16256 decided December 6, 2012

The part of the judgment of the court below concerning the principal claim and the claim for the return of provisional payment shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, ① the instant association’s housing redevelopment project was implemented to newly build a new road (hereinafter “instant apartment”) on the ground in Seongbuk-gu Seoul, Seongbuk-gu. ② The instant apartment complex was installed with a swimming pool, etc. on the first floor, 1,328.78 square meters under the ground, and the second floor, 958.90 square meters under the instant apartment complex (hereinafter “instant underground 1,200 square meters”); the instant association, around September 16, 2004 (hereinafter “Defendant 2”), which was the time when the new construction of the instant apartment was completed, was partially leased to the Defendant 1’s non-resident representative meeting of KRW 10 million, monthly user fees of KRW 90,000,000, and Defendant 2’s management and operation of the instant apartment complex from May 1, 2005 to December 31, 2012.

2. The main text of Article 43(6) of the former Housing Act (amended by Act No. 11061, Sep. 16, 2011; hereinafter the same) (hereinafter “instant provision”) provides that “If an autonomous management organization under paragraph (4) is organized or a housing management operator is selected under paragraph (5), the project owner shall transfer the management of the collective housing to the relevant management entity, and the same shall also apply where the management entity is changed.”

The lower court: (a) determined that the instant provision imposes an obligation on the council of occupants’ representatives to take over all the management affairs, including rights and obligations under a contract entered into with a third party in connection with the management of a collective housing; (b) on this premise, the council of occupants’ representatives of the instant apartment pursuant to the instant provision succeeds to the rights and obligations of the instant association under the instant entrusted management agreement; and (c) on the ground that the said management agreement’s effect extends to the Plaintiffs, the Defendants’ defenses of the possessory right holder under the instant entrusted management agreement was accepted; and (d) dismissed the instant claim filed by the Plaintiffs seeking to take over the 10th and the

3. However, the lower court’s determination is difficult to accept for the following reasons.

A. Article 43(1) of the former Housing Act provides, “The project undertaker shall directly manage the relevant multi-family housing until a majority of the prospective occupants move into the zone, and if a majority of prospective occupants move into the zone, he/she shall notify the occupants of such fact and request them to manage the relevant multi-family housing pursuant to paragraph (2).” The management of the multi-family housing by the project undertaker is a temporary management until a majority of prospective occupants move into the zone.”

Furthermore, Article 43(3) of the former Housing Act provides, “When a resident receives a request under paragraph (1), he/she shall constitute a council of occupants' representatives within three months from the date he/she receives such request, and shall determine management methods of the relevant multi-family housing (where a housing management operator selects management methods by entrusting a housing management operator, including the selection of such housing management operator) and notify the project operator thereof.” After the majority of the prospective occupants moved into a multi-family housing management council, the former Housing Act guarantees autonomous management of the multi

Therefore, the instant provision is interpreted as uniformly imposing the obligation to succeed to the rights and obligations under the contract concluded with a third party in connection with the management of a collective housing before the majority of the prospective occupants move into a multi-family housing, and it is unreasonable to expand the validity of the contract to the extent that it goes against the purport of the former Housing Act provision.

B. Meanwhile, Article 44(3) of the former Housing Act provides, “The management rules shall also have the effect on the person who succeeds to the status of the occupant,” while Article 47(1) of the same Act provides, “The project owner or the person who performs remodeling shall prepare a long-term repair plan for common areas of the apartment house and submit it to the authority for usage inspection when applying for a pre-use inspection under Article 29, and the said authority for usage inspection shall transfer it to the managing body of the apartment house, and the said authority for usage inspection shall transfer it to the said authority for the transfer of legal status, and the term “transfer” for the de facto transfer of goods or documents, and the term “transfer” among them is used.

In addition, Article 54(1) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 23665, Mar. 13, 2012; hereinafter the same) that embodys the instant provisions, the project proprietor shall prepare a letter of acceptance and transfer when he/she hands over the management duties to an autonomous management organization or a housing management operator pursuant to the main sentence of Article 43(6) of the Act and hand over the following documents. In such cases, the proprietor and transferor shall respectively sign and affix their seals on the letter of acceptance and transfer in the presence of the representative of the council of occupants' representatives.” As such, the “transfer” is used in the actual sense

In addition, Article 2 subparag. 14 of the former Housing Act provides that the main body to take over management affairs from a project undertaker is the head of the management office or the housing management operator of a multi-family housing, which is the representative of an autonomous management body. The head of the management office of a multi-family housing, which is the representative of an autonomous management body, shall not be the main body to assume rights and obligations under a contract entered into in the course of performing management affairs (see Supreme Court Decision 2014Da62657, Jan. 29, 2015). According to Articles 49(1) and 55(1) of the former Enforcement Decree of the Housing Act, these management bodies are merely the status of performing and embodying the management affairs of multi-family housing by delegation or resolution of the council

In light of the language and content of the provisions of the former Housing Act, it is difficult to view the instant provision to the effect that the project undertaker intends to include the right and obligation under a contract concluded with a third party in relation to the management of multi-family housing in the succession of the right and obligation under the contract.

C. If it is interpreted that the council of occupants' representatives, etc. bears the duty to succeed to the rights and obligations under the contract concluded with a third party in connection with the management of a collective housing pursuant to the instant provision, the council of occupants' representatives, etc. shall succeed to the rights and obligations under the contract concluded by the business entity, which is a separate subject of rights, and it is against the principle of private autonomy merely because it is related to the management of the collective housing.

D. Comprehensively taking account of such circumstances, it is reasonable to deem that the instant provision provides that a business entity shall actually transfer the management work between the business entity and the new management entity, and it cannot be deemed that a provision that imposes an obligation on the business entity to succeed to the rights, obligations, etc. under a contract entered into with a third party in connection with the management of collective housing with respect to the council of occupants’ representatives that do not fall under the management entity

E. Examining the above facts in light of the above legal principles, insofar as the council of occupants’ representatives of the apartment of this case expressed its intention not to succeed to the rights and obligations of the instant association under the instant consignment management contract, it does not automatically succeed to the rights and obligations of the instant association under the instant consignment management contract to the council of occupants’ representatives of the apartment of this case pursuant to the instant provisions.

Nevertheless, the court below, on the premise that the council of occupants' representatives of the apartment of this case bears the duty to succeed to the rights and duties of the association of this case under the entrusted management contract of this case, and dismissed the plaintiffs' claim of this case. In such a case, the judgment below erred by misapprehending the legal principles on the transfer of management duties under the provisions of this case, which affected the conclusion of the judgment, and the ground of

4. The application for the return of provisional payment constitutes a preliminary counterclaim that is subject to the cancellation and change of the judgment on the merits, and thus, the part concerning the application for the return of provisional payment should also be reversed, as long as the part concerning the principal lawsuit of the judgment below is reversed (see Supreme Court Decision 2011Da56033, Sept. 13, 2013).

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part concerning the principal lawsuit and the part concerning the application for return of provisional payments among the judgment below are reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)