Even if Article 43(1) of the Housing Act provides that the facilities sold to the general public among welfare facilities shall be excluded from those subject to management by the managing body of multi-family housing, whether management expenses may be imposed in cases where there is an agreement between the council of occupants' representatives and the owner of welfare facilities that the council of occupants' representatives shall manage welfare facilities and collect management expenses

Article 43(1) of the Housing Act, Article 48 of the Enforcement Decree of the Housing Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Yongsan Operation Management Committee (Law Firm Kimhae & World, Attorneys Lee Won-won, Counsel for the plaintiff-appellant)

Defendant

Changwon District Court Decision 2009Na11079 decided January 27, 2011

The judgment of the court below is reversed, and the case is remanded to the Changwon District Court Panel Division.

The grounds of appeal are examined.

1. The court below determined that Article 43(1) of the Housing Act and Article 48 of the Enforcement Decree of the Housing Act provide that facilities sold to the general public among welfare facilities shall be excluded from the subject of management by the managing body of multi-family housing, and that the management body of multi-family housing shall pay the management expenses pursuant to the management rules set forth by the managing body of multi-family housing, and that the management body of multi-family housing shall be excluded from the subject of management by the managing body of multi-family housing, and that the management body of multi-family housing shall not be subject to management by the managing body of multi-family housing pursuant to the management rules set forth in Article 43(1) of the Housing Act, although the management body of multi-family housing shall be subject to self-management by the managing body of multi-family housing, or by the management body of multi-family housing, and the management body of multi-family housing shall not be subject to management by the management body of multi-family housing pursuant to the management rules set forth in Article 48(1) of the Housing Act.

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

Even if Article 43(1) of the Housing Act and Article 48 of the Enforcement Decree thereof stipulate that the facilities sold to the general public among welfare facilities shall be excluded from those subject to management by the managing body of multi-family housing, if the council of occupants' representatives and the owners of such welfare facilities have agreed to manage the welfare facilities and collect management expenses pursuant to the management rules, etc., the management expenses may be imposed (see Supreme Court Decision 97Da50114, Apr. 14, 1998).

According to the reasoning of the judgment below and the records, the Yongsan Building constructed around 1978 was composed of 75 households in operation main complex buildings (31 households in operation and 44 households in operation), 87 households in Nadong housing, 90 households in multi-dong housing, and 252 households in total. The plaintiff was imposed and collected management expenses including commercial buildings, and the management rules were amended on March 18, 2005 at the 27th general meeting of occupants including commercial owners. The above management rules are subject to the management rules of commercial buildings including the store of this case (Article 1 and [Attachment Table 1], and the management rules are effective against the successor to the status of the tenant (Article 5), and the defendant can also be found to have acquired the status of tenant by acquiring the registration of ownership transfer due to voluntary auction on April 29, 2005 due to the acquisition of the status of tenant due to the registration of ownership transfer due to the sale of the store of this case.

Nevertheless, the court below determined that the store of this case cannot be deemed to be managed by the plaintiff even if the store of this case, such as the store of this case, is subject to the management of the plaintiff. The court below erred by misapprehending the legal principles on the management rules, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case 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 Lee In-bok (Presiding Justice)