[1] Where a small-sum case does not meet the requirement of “when a decision contrary to the precedents of the Supreme Court has been made,” which may be the ground of appeal, but the Supreme Court can determine the error in interpreting and applying the substantive law

[2] The meaning of "matters related to the separate ownership" that are excluded from the duties of a superstore manager under the former Distribution Industry Development Act, and whether the restriction or alteration of the business type of a commercial building constitutes "matters related to the separate ownership" (affirmative)

[1] In a case where there is no precedent of the Supreme Court on the interpretation of statutes applicable to a specific case in a small-sum case, there is a case where a number of small-sum case at issue of interpretation of the same Act is pending in the lower court, and there is a decision on what kind of case according to the full bench, the Supreme Court’s conclusion of the case without making a decision on the interpretation of statutes on the grounds that the small-sum case is the small-sum case would be likely to undermine the legal safety of people’s lives if the case is terminated without making a decision on the interpretation of statutes. In such a case where there is no such special circumstance, even if it does not meet the requirement of “when a decision contrary to the precedents of the Supreme Court,” which can be

[2] The former Distribution Industry Development Act (amended by Act No. 1497, Oct. 31, 2017; hereinafter “former Distribution Industry Development Act”) grants a general authority for the maintenance and management of a superstore to a superstore manager who is established by occupant-merchants who are not a management body under the Act on the Ownership and Management of Aggregate Buildings, which is naturally established by all sectional owners, but rather, to a superstore manager who is established by the management body under the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”). However, “matters related to sectional ownership” is governed by the provisions of the Act on the Ownership and Management of Aggregate Buildings, such as regulations established by a management body, which is a sectional owner’s organization, or a resolution of a management body meeting. Therefore, considering the legislative purport of the former Distribution Industry Development Act and the relationship with the Act on the Ownership and Management of Aggregate Buildings, it is reasonable to interpret that “matters related to sectional ownership excluded from the duties of a superstore manager, among the maintenance and management business of a superstore, may conflict with the exercise of a store owner’s ownership or infringe on the ownership.

Meanwhile, in the case of an aggregate building subject to the regulation of the Act on the Ownership and Management of Aggregate Buildings, if the sale in lots commences and the necessity of joint management arises due to the commencement of occupancy in lots, the management body under Article 23 of the Act on the Ownership and Management of Aggregate Buildings consisting of all sectional owners including the sectional owners of the unsold section of exclusive ownership at the time of the establishment of the management body, and after the establishment of the management body, the restriction on the type of business may be newly established or changed through the regulations of the management body under Article 28 of the Act on the Ownership and Management of Aggregate Buildings. Since such restriction on the type of business basically has the meaning of guaranteeing the exclusive management right for the relevant type of business to the buyer or sectional owners, it is necessary to reach an agreement by the buyer or sectional owners who are not third parties such as lessees, etc. to change it. Therefore, the restriction or change of the type of business of the commercial building constitutes a "matters related to the classification of ownership" which might conflict with

[1] Article 3 subparag. 2 of the Trial of Small Claims Act / [2] Article 12(1)3, (2), and (4) of the former Distribution Industry Development Act (Amended by Act No. 14997, Oct. 31, 2017); Articles 23 and 28 of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Decision 2003Da1878 Decided August 20, 2004 (Gong2004Ha, 1571), Supreme Court Decision 2012Da48824 Decided March 26, 2015 / [2] Supreme Court Decision 2007Da83427 Decided October 13, 201 (Gong201Ha, 2293), Supreme Court Decision 201Da79258 Decided November 29, 2012 (Gong2013Sang, 17)

○○○ shopping mall Co., Ltd. (Attorney Go-sung, Counsel for the plaintiff-appellant)

Defendant

Seoul Central District Court Decision 2018Na1345 decided June 12, 2018

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. A. In a case where there is no precedent of the Supreme Court on the interpretation of statutes applicable to a specific case in a small amount case, there is a case where a number of small amount cases, the issue of which is the interpretation of the same statutes, are pending in the lower court, and there is a decision on what kind of cases according to the full bench, and where the Supreme Court terminates the case without making a decision on the interpretation of the statutes on the grounds that it is a small amount case, it would be likely to undermine the legal safety of people's lives. In such a case where there is no special circumstance, even if the Supreme Court did not meet the requirement of "when it makes a decision contrary to the precedents of the Supreme Court," which can be the ground for appeal, for the unification of statutory interpretation, it shall be deemed that the determination of errors in the interpretation and application of substantive laws can be made in a way that performs the essential function of the Supreme Court (see, e.g., Supreme Court Decisions 2003Da1878, Aug. 20, 2004; 2012Da

B. The former Distribution Industry Development Act (amended by Act No. 14997, Oct. 31, 2017; hereinafter “former Distribution Industry Development Act”) grants a general authority to maintain and manage a superstore to a superstore manager who is established by a large-scale store manager who is not a management body under the Act on the Ownership and Management of Aggregate Buildings, which is naturally established by all sectional owners, but is not a management body under the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings”), while regulating the interests between the sectional owners and the occupant-merchants in the management of a superstore by ensuring that “matters related to sectional ownership” are governed by the provisions of the Act on the Ownership and Management of Aggregate Buildings, such as regulations established by a management body, which is a sectional owner’s organization, or a resolution to hold a management body. Therefore, considering the legislative purport of the former Distribution Industry Development Act and the relationship with the Act on the Ownership and Management of Aggregate Buildings, it is reasonable to interpret that the exercise of the ownership of the tenant owners and the ownership of the sectional owners, if permitted to the superstore manager or the superstore manager (see, etc.).

Meanwhile, in the case of an aggregate building subject to the regulation of the Act on the Ownership and Management of Aggregate Buildings, if the sale in lots commences and the necessity of joint management arises due to the commencement of occupancy in lots, a management body under Article 23 of the Act on the Ownership and Management of Aggregate Buildings consisting of all sectional owners including the sectional owners of the unsold section of exclusive ownership at that time may be established or changed as a matter of course, and after the establishment of the management body, the restriction on the type of business may be newly established or changed through the regulations of the management body under Article 28 of the Act on the Ownership and Management of Aggregate Buildings. Since such restriction on the type of business basically has the meaning of guaranteeing the exclusive right to operate the relevant type of business to the buyer or sectional owners, it is necessary for the buyer who is not a third party such as lessee or sectional owners to reach an agreement (see Supreme Court Decision 2011Da79258, Nov. 29, 2012). Therefore, the restriction or change of the type of business of a commercial building constitutes “matters related to the ownership or ownership of a superstore.”

2. A. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) On September 4, 2013, the Plaintiff completed the procedures for reporting to the head of Jung-gu Seoul Metropolitan Government on September 4, 2013 pursuant to the former Distribution Industry Development Act with respect to the shopping mall (hereinafter “instant shopping mall”) located in Jung-gu, Seoul and the 16th ground-based building (hereinafter “instant shopping mall”), and processes the imposition, collection, etc. of the management fee of the superstore part as a superstore manager from around that time.

2) The Defendant is a sectional owner of the seventh floor △△△△△△△△△ (hereinafter “instant store”) of the shopping mall in the instant case.

3) The instant shopping mall management body, which is a management body under Article 23(1) of the Act on the Ownership and Management of Aggregate Buildings, is to promote collective admission points for the five, six, and seven stories of shopping malls in order to revitalize shopping malls at once, and was submitted by the sectional owners, including the Defendant, with a written consent related to the promotion of collective admission.

4) According to Article 41 of the Management Rules of the shopping mall of this case, matters concerning the change of the type of business of each floor and additional allocation are decided by the Steering Committee of the shopping mall management body of this case composed of representatives from each floor. Accordingly, on November 12, 2009, the Steering Committee of the shopping mall management body of this case decided to “domestic and foreign brand salesroom occupants, entertainment, and entertainment exhibition exhibition hall for attracting group entry” with the content that the operation committee of the shopping mall management body of this case moves the existing business items of the 5,6, and seven stories to other floors, and the relevant floor is to be changed to “all items of domestic and foreign brand sales, entertainment, and entertainment exhibition hall for attracting group entry.”

5) According to the above resolution, all shop occupants operating on the seventh floor of the shopping mall of this case moved to another floor and the seventh floor was vacant room. Around March 2010, the shopping mall management body of this case took measures, such as cutting electricity, cutting water, escalator, suspending the operation of elevators, etc. on the seventh floor for the safety management of the store.

6) After several times, the contract was concluded, but it was not concluded. The management committee of the shopping mall management body of this case was held on August 3, 2012 by taking into account the restoration of its unique items and the time of their implementation as the agenda items. The agenda items to be returned to the unique items before the change was made by the resolution of November 12, 2009 was resolved, but the quorum was rejected as to the time of the return of items. The shopping mall management body of this case did not take measures to return its unique items.

B. Examining the following circumstances revealed based on such factual basis in light of the legal principles as seen earlier, in a case where unlawful use obstruction is recognized by the shopping mall management body, etc., the Defendant’s claim for damages against the management body, etc. is difficult to deem that the Plaintiff interfered with the Defendant’s use or profit by illegally closing the instant store or maintaining the closure of the store.

1) It is determined by the resolution of November 12, 2009 by the operating committee of the shopping mall management body of the case where the shopping mall of this case changed the business items of the 7th floor and all the seven-story shop occupants move to another floor.

2) The Defendant’s failure to use the instant store for its original purpose after August 2012 was due to the fact that the Operating Committee of the Management Committee of the Shopping mall in the instant case failed to resolve on August 3, 2012 on the date of returning its unique products and was not recovered from seven floors to make it possible for the instant shopping mall to operate individual business on the seventh floor, and it is difficult to deem otherwise due to the Plaintiff’s failure to supply electricity, water, etc. to the seventh floor.

3) The return of the unique items by each floor constitutes “matters pertaining to the separate ownership,” and does not include the Plaintiff’s business as a superstore manager established by shop occupants, since it constitutes “matters relating to the restriction on or change in the business type of commercial buildings.”

4) In order to coordinate interests between the owner of a superstore and the occupant-merchants, it is unreasonable to transfer the economic damage suffered by the owner of the shopping mall management body of this case to the Plaintiff, as long as the relevant statutes have separate management body and the superstore manager under the former Distribution Industry Development Act.

C. Nevertheless, solely based on its reasoning, the lower court dismissed the Plaintiff’s claim for management expenses corresponding to this part by deeming that the Plaintiff interfered with the Defendant’s use and profit-making of the store. In so doing, the lower court erred by misapprehending the legal doctrine on the duty to pay management expenses by sectional owners, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)