[1] The case holding that in a case where facilities necessary for rain or business are separately installed in the second floor electric and mechanical room of an aggregate building, the consent of the sectional owners of a building is required by a legitimate assembly resolution, on the ground that the facilities separately installed in the electric and mechanical room of an aggregate building, which is a common area, for the purpose of private use, are exclusively occupied and used, and the change or management of the common area is deemed to be necessary

[2] In a case where Gap et al. separately installed a facility in an electricity and machinery room, which is a common part of an aggregate building, and occupied and used the facility exclusively, and in a case where Eul et al. sought exclusive exclusion from the use and removal of each facility by preservation of the jointly-owned property, the case holding that the request by the sectional owner Eul et al. for removal only for the purpose of causing harm to the other party and causing damage to the other party, and it cannot be viewed as an abuse of rights, since it does not constitute abuse of rights

[1] The case holding that in a case where facilities necessary for rain and business are separately installed in the second floor electricity and machinery room underground of an aggregate building, the electricity and machinery room of an aggregate building falls under the "section for common use" provided for the common use by all sectional owners, and the separate installation of facilities necessary for rain and business in an electricity and machinery room which is a common use area constitutes the exclusive possession and use of the facilities, and thus the consent of the sectional owners of a building by a legitimate resolution of an assembly is required

[2] In a case where Gap et al. separately installed a facility in an electricity and machinery room, which is a common part of an aggregate building, and occupied and used the facility exclusively, and in a case where Eul et al. sought exclusive exclusion from use and removal of each facility by preservation of the jointly-owned property, the case holding that, considering that the electricity and machinery room is an important part of the maintenance and management of the entire building due to its nature, the request for removal by Eul et al. is merely for the purpose of causing pain to the other party and causing damage to the other party, it cannot be viewed as abuse of rights, and it cannot be viewed as abuse of rights.

[1] Articles 15(1) and 16(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 9172 of Dec. 26, 2008) / [2] Article 2(2) of the Civil Act

Plaintiff 1 and four others (Attorney Song Jong-chul, Counsel for the plaintiff-appellant)

Defendant 1 and 2 others (Law Firm Doel (Law Firm, Attorneys Hayang-ju et al., Counsel for defendant-appellant)

Seoul Western District Court Decision 2007Na3029 Decided August 28, 2008

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to the assertion of misapprehension of legal principles as to the interpretation of the Act on Ownership and Management of Condominium Buildings

Article 11 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 9172, Dec. 26, 2008; hereinafter "the Aggregate Buildings Act") provides that "each co-owner may use the section for common use according to its use." The main text of Article 15(1) provides that "the matters concerning the change of the section for common use shall be determined by a resolution at an assembly by a majority of not less than 3/4 of both sectional owners and voting rights," and the main text of Article 16(1) provides that "the matters concerning the management of the section for common use shall be determined by a resolution at an ordinary assembly except for the case of the main sentence of Article

According to the reasoning of the judgment below, after compiling evidence, the court below acknowledged the facts as stated in its reasoning. The second floor electricity and machine room of the building of this case is provided to the public use of all sectional owners in the aggregate building. The defendants' separate installation of each of the facilities of this case necessary for their friendship and business in the above electrical and mechanical room, which is the common use area, cannot be deemed to be merely the use of the common use area of the aggregate building for its original purpose. The installation of each of the facilities of this case requires the consent of the sectional owners of the building of this case under Article 15 (1) or Article 16 (1) of the Aggregate Buildings Act because it falls under the change or management of the common use area, and it is necessary for the defendants to obtain the exclusive approval of the exclusive use area of the building of this case as stipulated in the above Article 15 (1) and Article 16 (1) of the Aggregate Buildings Act. The defendants did not have an exclusive right to use the building of this case with the non-party 1, the management authority of the building of this case, and the exclusive use area of this case.

In light of the records, the above fact-finding and judgment of the court below are just and acceptable. On the other hand, if the relationship of sectional ownership is established as to the building, a management body consisting of all sectional owners (Article 23(1) of the Aggregate Buildings Act), and if there is an agreement in writing with at least four-fifths of sectional owners and voting rights, a resolution by the management body meeting is deemed to have been adopted (Article 41(1) of the Aggregate Buildings Act). Thus, in installing each of the facilities of this case, the defendants could not be deemed to have obtained the consent of the sectional owners of the building of this case under the Aggregate Buildings Act. Furthermore, since the defendants did not raise any objection with regard to the construction of each of the facilities of this case after the construction of each of the facilities of this case, it is difficult for sectional owners to view

The court below did not err in the misapprehension of legal principles as to the interpretation of the Aggregate Buildings Act or the rules of evidence.

2. As to the assertion of misapprehension of legal principles as to prohibition of abuse of rights

If the exercise of a right can be seen as an abuse of a right, a subjective purpose of the exercise of the right should be to inflict pain and damage on the other party, and there should be no benefit to the person who exercises the right. In an objective view, the exercise of the right should be viewed as a violation of social order. Unless it falls under such a case, even if the loss of the other party is significantly high than the benefit that the exercise of the right has gained by the exercise of the right, such circumstance alone does not constitute an abuse of right (see Supreme Court Decision 2009Da1092, May 14, 2009, etc.).

Considering that the electricity and machinery room of the second floor of the building of this case is an important part in the maintenance and management of the entire building of this case by its nature, the court below rejected the defendant's assertion of abuse of rights on the ground that the defendants' claim for removal of this case only aims to inflict damage on the defendants, the other party, and it is difficult to conclude that the plaintiff's claim for removal of this case does not have any profit to the sectional owners of the building of this case including the plaintiffs, and there is no other evidence to recognize that the plaintiffs' claim of this case constitutes abuse of rights. In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no violation of law of misunderstanding of legal principles

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)