207Confirmation of the non-existence of an obligation

Is 00

Attorney Lee Do-young

1. A 00 comprehensive shopping malls;

Chairperson of the Council

2. ○○○

[Defendant-Appellant] Defendant 1

March 12, 2008

April 16, 2008

1. It is confirmed that the Plaintiff’s obligation to pay delinquent management fees and late payment fees from April 2004 to May 2007 for the first floor No. 155, Nam-gu, Incheon Metropolitan City 00 apartment O of the first floor of the first apartment 155, Nam-gu, 2004 of the Plaintiff’s ○○○○○ Complex, does not exist in excess of KRW 32,51,646.

2. Defendant 00,410,00 won and 5% per annum from May 25, 2007 to April 16, 2008, and 20% per annum from the next day to the day of full payment to the Plaintiff.

3. Defendant ○○ shall pay to the Plaintiff 16,62,064 won with 20% interest per annum from April 16, 2008 to the day of full payment.

4. The plaintiff's remaining claims against the defendants are dismissed.

5. Three-minutes of litigation costs are assessed against the Plaintiff, and the remainder is assessed against the Defendants.

6.The provisions of paragraphs 2 and 3 of this Article may be provisionally executed.

It is confirmed that there is no obligation to pay the Plaintiff’s total amount of KRW 64,173,710,00 and the late payment charge from April 2004 to May 2007 to 155 (hereinafter “the instant building”) to ○○○○ apartment ○○○○○○○ Association (hereinafter “the instant building”). The Defendants jointly and severally pay to the Plaintiff the amount of KRW 50,410,00 and its late payment from May 25, 2007 to the day of delivery of a copy of the instant complaint; KRW 55% per annum from the next day to the day of full payment; and KRW 20% per annum from the next day to the day of full payment. Defendant ○○○○ shall pay the amount of KRW 49,173,710 and the amount of money calculated at the rate of KRW 20% per annum from this judgment to the day of full payment.

1. Basic facts

A. Under the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the " Aggregate Buildings Act"), the defendant prosperity association is a non-corporate body with the aim of implementing the project relating to the management of buildings, sites and their accessory facilities in Nam-gu, Incheon Metropolitan City. The defendant Lee Young-gu is the chairman of the defendant prosperity association who is in office from August 1, 2006.

B. The auction procedure was commenced on December 30, 2004 by Incheon District Court Decision 2004 Mata18662 on the building of this case, which had been owned by ○○○○○○○○○○, and the auction procedure was completed on the same day. In the above auction procedure, the plaintiff was awarded a successful bid on June 21, 2006, and the plaintiff completed the registration of ownership transfer on the same day.

C. After acquiring the ownership of the building of this case, the Plaintiff received a decision to deliver the sold real estate around July 20, 2006 against the lessee of the building of this case, and occupied the building of this case by taking the key around the 25th day of the same month.

D. Meanwhile, ○○○, the former sectional owner of the instant building, did not pay the management expenses for the instant building from April 2004, and Defendant Macyoung took a full-time measure on the instant building around June 2004.

E. On November 21, 2006, after the Plaintiff occupied the instant building, the Plaintiff demanded the Defendants to cancel the short-term measure on the instant building. However, the Defendants notified the Plaintiff that the short-term measure could not be cancelled unless the Defendant did not pay the management expenses and late-payment fees in arrears. On May 28, 2007, the Plaintiff should follow the court’s subsequent ruling, and on May 28, 2007, the settlement of management expenses between Defendant Lee ○ and the subsequent court’s ruling, and the sum of KRW 5,125,710 (hereinafter referred to as “the custody money in this case”) of KRW 5,125,710 (hereinafter referred to as “the custody money in this case”) was stored in Defendant ○○ by the time the court decided to immediately cancel the short-term measure on the instant building at the same time as the entrustment of the custody money, and on May 28, 2007, the short-term measure was cancelled.

(1) Estimated amount of management expenses in arrears from April 2004 to May 2007 46,204,760 won

(2) players management costs of KRW 5,952,00

(3) 2,968,950 won for arrears after the auction.

F. Around May 4, 2007, the Plaintiff leased the instant building to Do○○, and Do○○○, around May 28, 2007, when the termination of the instant building was revoked, performed interior works and is operating Marates on the instant building (water-supply facilities of the instant building leased by Ra).

G. The details of imposition of management expenses from April 2004 to May 2007 imposed on the building of this case are as shown in the attached management expenses list.

[Basis] Evidence No. 1-1, evidence No. 2-1 through 3, evidence No. 3, evidence No. 6, evidence No. 10-9, 10, 11, 26, 32 through 44, 48, and 53 through 63, the result of the Defendant Lee ○’s personal examination, and the purport of the whole pleadings

2. Determination as to the claim for confirmation of the absence of the non-existence of the defendant prosperity association

A. The parties' assertion

(1) The plaintiff is not obligated to pay the plaintiff the delinquent management expenses and late payment charges from April 2004 to June 20, 2006 concerning the building of this case, which were incurred prior to the successful bid of the building of this case. Also, the delinquent management expenses and late payment charges from June 21, 2006 to May 2007 concerning the building of this case could not be used the building of this case due to the illegal cutting-out and the measures taken by the defendant prosperity. Thus, although the plaintiff did not have a duty to pay them, the defendant prosperity did not have a duty to claim the plaintiff to verify the delinquent management expenses and late payment charges from April 2004 to May 207 (=4,173,710 won, 46,204,760 won from April 20 to May 207 + the late payment charges from April 2004 to May 207 to June 20, 2006 to June 206, 2005).

(2) As to the above, according to the management rules of the building in this case, the defendant prosperity Association is obligated to pay the management fees and late payment fees due to the former sectional owner as the special successor of the sectional owner, and since the part-time measures taken by the defendant prosperity against the building in this case are legitimate measures under the management rules, the plaintiff's assertion is without merit.

B. Determination of the existence of management expenses and late payment charges from April 2004 to June 20, 2006 (whether or not the plaintiff succeeds to the management expenses in arrears)

(1) Article 18 of the Act on the Ownership and Management of Aggregate Buildings stipulates that a co-owner's claim against another co-owner with respect to the section for common use shall be exercised against the special successor. This is because the section for common use of an aggregate building is provided for the benefit of all co-owners, and it is jointly maintained and managed, and the claim between co-owners with respect to the expenses incurred in order to promote the proper maintenance and management thereof shall be guaranteed in particular, so it is necessary to allow the special successor of the co-owner to claim against the special successor regardless of whether he/she wishes to succeed. Thus, the part concerning the management fee for the section for common use in the management agreement that allows the special successor of the former sectional owner to succeed to the delinquent management fee for the former sectional owner is valid. The management fee for the section for common use which is succeeded to the special successor of the former sectional owner of an aggregate building is not only paid for the direct maintenance and management of the section for common use of the aggregate building, but also the expenses that need to be uniformly maintained and managed for the whole interests of the occupants.

(2) In the instant case, comprehensively taking account of the overall purport of the arguments in evidence No. 3, evidence No. 10, evidence No. 34, evidence No. 10-2, evidence No. 32, and evidence No. 3-1 through No. 4 of the evidence No. 3, Article 10-3 and Article 40-3 of the Rules on the Management of the defendant prosperity Association provide that the acquirer shall succeed to the management expenses and other delinquent parts of the previous sectional owner. The management expenses in arrears of the previous sectional owner of the instant building from April 2004 to June 2006, which were the date of the successful bid of the instant building, are the same as the list of the management expenses in the attached Form No. 3, since 00 Maw, which had been located in the instant building during the above period, did not run business, the plaintiff shall not be deemed to have been able to recognize the expenses and maintenance expenses of the aggregate building among the management expenses, repair expenses, fire, general repair expenses, electricity, and water management expenses.

Therefore, the plaintiff is obligated to pay 32,323,276 won in total as delinquent management expenses from April 1, 2004 to June 20, 2006 (the sum of 31,374,470 won to May 2006) +948,806 won (the number 271,423,210 x 20/30 x less than won in the same list) from June 1, 2006 to June 20, 2006 (the period subject to imposition of the monthly management expenses from April 1, 2004 to May 206) (the same shall apply hereinafter).

(3) Furthermore, from April 2004 to June 20, 2006, as to whether the Plaintiff is obligated to succeed to the overdue charge on the delinquent management expenses of the former sectional owner and pay it, the overdue charge imposed when the payment of the management expenses is delayed is a kind of penalty, and the special successor of the former sectional owner succeeds to the delinquent common area management expenses, and it does not succeed to the legal effect that the former sectional owner has already incurred due to the delinquency in the payment of the management expenses for the common area. Therefore, it is reasonable to deem that the overdue charge on the management expenses for the common area does not be included in the management expenses for the common area succeeded to the special successor, and therefore, the Plaintiff is not obliged to pay the overdue charge on the delinquent management expenses for the above period.

C. From June 21, 2006 to May 31, 2007, whether the existence of management expenses and overdue debts has been determined, and whether the measures taken before the Round were unlawful

(1) As the pre-existing owner of the building of this case did not pay management expenses from April 2004, the plaintiff Lee Young-chul had taken measures to cut down the building of this case on or around June 2004. Since the alleged OO and OO had taken measures to cut down the building of this case, the part of the claim is without merit, and the part of the defendant Lee Young-young did not demand the plaintiff who was awarded the bid for the building of this case to pay management expenses and late payment fees in arrears, and thus the plaintiff prevented the use and profit-making of the building of this case. Since the plaintiff paid the storage expenses of this case to the defendant OO on or around May 28, 2007, it was acknowledged that the pre-existing owner of the building of this case had succeeded to the right of the pre-existing sectional owner and the right of the pre-existing sectional owner to pay management expenses of this case, and thus, it was unlawful, even if the plaintiff had succeeded to the right of the pre-existing sectional owner, the pre-existing sectional owner had succeeded to the management expenses of this case.

(2) Therefore, if a sectional owner of a building could not use or benefit from the building due to an unlawful act that interferes with the use of the building, such as the illegal cutting-out and obstruction of occupancy by the managing body, such as the management body of an aggregate building, etc., the sectional owner does not bear the obligation of management expenses incurred during the period (see Supreme Court Decision 2004Da3598, 3604, supra).

In this case, as seen earlier, the Plaintiff could not use or benefit from the instant building from June 21, 2006 to May 27, 2007 due to the tort by the Health Center and the Defendant Oral Conference, and therefore, there is no obligation for management expenses and late payment charges during the above period.

(3) However, around May 28, 2007, the fact that Defendant Magyoung cancelled the measures on the instant building around May 28, 2007 is recognized as above, and according to the evidence Nos. 15, 4-2 of evidence Nos. 3, and evidence Nos. 15, 4-2 of the evidence No. 3, in May 2007, the management fee was imposed in total of KRW 1,414,170. Among them, the portion of the electricity fee for each household was paid after the termination of the collective measure. As such, the Plaintiff shall pay all the electricity fee for each household used in the instant building from May 28, 2007 to May 31, 2007 and the management fee for the instant building during the above period. The management fee for the fourth day is KRW 188,370 [the electricity fee for each household + KRW 6,770 won for each household + KRW 18,604,714]

3. Determination on the claim for damages against the Defendants

(a) Occurrence of liability for damages;

(1) Claim against the defendant prosperity

In light of the fact that the Plaintiff was unable to use or profit from the instant building from June 21, 2006, which was the successful bid for the instant building from June 21, 2006 to May 28, 2007, due to the collective action taken by the Defendant Macyoung on the instant building, the Defendant Macyoung is liable to compensate the Plaintiff for damages caused by the Plaintiff’s failure to use or profit from the instant building due to the said collective action taken by the Defendant Macyoung.

In light of the fact that the plaintiff tried to sell the building of this case from May 2006, the defendant Macyoung argued to the effect that the damage was not occurred since the plaintiff had no idea to use or profit from the building of this case since the beginning of the year. However, it is difficult to recognize that the plaintiff did not have any idea to use or profit from the building of this case, or that the plaintiff did not have any damage to the plaintiff merely with the descriptions of the evidence No. 5-1 to No. 3.

(2) Claim against Defendant Lee ○○

Although it is difficult for the Plaintiff to have been notified of the summary order of KRW 300,000 (No. 50179) from the Incheon District Court on the ground that the Defendant’s ○○○○○○○○○○○○○○○ was not the president of the instant building, and as a result, the Plaintiff incurred damages that could not use the instant building, Defendant 00 was jointly and severally liable to compensate the Plaintiff for damages caused by tort, according to each description of No. 10-1 through No. 7, Defendant ○○○○○○○○○’s demand from the Plaintiff to remove the short circuit of the instant building, but it was not easy for the Plaintiff to have been notified of the summary order of KRW 300,00 (No. 2007 high-end 50179) from the Defendant’s District Court on the ground that it obstructed the Plaintiff’s possession and operation of the instant building, in light of the above evidence and the overall purport of the argument, the resolution of Defendant ○○○○○ was not liable for tort’s.

B. Unless there are special circumstances within the scope of damages, damages incurred by the failure to use or make profits from the building of this case shall be the amount equivalent to the rent for the building of this case. According to the appraiser's appraisal result, if there is no deposit for the building of this case from July 25, 2006 to May 24, 2007, the amount equivalent to the rent shall be recognized as constituting 5,041,00 per month. Thus, the amount of damages that the defendant prosperity association is liable to compensate the plaintiff (=50,410,000 won = 5,04,000 won x 10 months x 10 months).

A. The plaintiff's assertion

Although the Plaintiff did not have a duty to pay the delinquent management expenses and late payment charges on the instant building, Defendant ○○ does not necessarily resume the supply of electricity if the Plaintiff did not pay the above delinquent management expenses and late payment charges to the Plaintiff. Defendant ○ has a duty to refund KRW 55,125,710 to Defendant ○○○. Defendant ○ has a duty to refund KRW 49,173,710 (= KRW 55,125,710 - KRW 5,952,000 in the name of the player management expenses and late payment charges, excluding KRW 5,952,00 in the name of the Plaintiff out of the instant money deposited with unjust enrichment.

B. Determination

As acknowledged earlier, 32,323,276 won of the delinquent management expenses and late payment fees imposed by the Defendant on the building of this case shall be succeeded to the Plaintiff who is the special successor of the former sectional owner from April 2004 to June 20, 2006, but the remainder of the delinquent management expenses and late payment fees shall not be succeeded to the Plaintiff, except for the above period. In addition, 18,370 won of the 4-day delinquent management expenses from May 28, 2007 to June 31, 2007 shall be the portion to be borne by the Plaintiff since the Plaintiff used the building of this case.

Therefore, 16,662,064 out of the custody money of this case (i.e., KRW 49,173,710 - KRW 32,323,276 - KRW 188,370) was paid to Defendant ○○ even though the Plaintiff was not obligated to pay it. Thus, Defendant 00 is obligated to return the aforementioned unjust enrichment to the Plaintiff.

5. Conclusion

Therefore, the plaintiff's obligation to pay delinquent management expenses and late payment fees from April 2004 to May 2007 to the plaintiff's 32,511,646 won (=32,323,276 won + management expenses in arrears from April 2004 to June 20, 196 until 18,370 won from May 28, 2007 to June 31, 2007) does not exceed 32,32,323,276 won, and there is no interest in confirmation as long as the defendant prosperity disputes over the management expenses and late payment charges between the above periods and the above periods, and the plaintiff's claim for late payment damages from May 25, 2007 to 206 per annum of the above judgment to 46% of the total amount of damages from May 26, 207, as the plaintiff's claim for damages from 200% of this case's total amount of damages from 40% per annum to 206% per annum of this decision.

Judges of the presiding judge

Judges

Judges