2012Da54058 Management Expenses

A Stock Company

B

Seoul Central District Court Decision 2010Na5310 Decided May 11, 2012

November 15, 2012

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

The grounds of appeal are examined.

1. The court below held that the plaintiff's claim of this case was based on the premise that the defendant sought payment of management expenses for the section for common use from February 2001 to January 2009 on the ground that he had the obligation to pay management expenses, etc. as a sectional owner who was sold in lots from the association of this case and completed the registration of ownership transfer from the association of this case, and rejected the plaintiff's claim under the premise that the defendant is the sectional owner of each of the stores of this case on the grounds as stated in its reasoning based on the following facts. In other words, although the association of this case bears the obligation to sell in lots each of the stores which can be registered and operated, it was merely null and void registration as to each of the stores of this case, and did not deliver it. The defendant expressed his intention to cancel the contract of this case on the grounds of the above default, and the declaration of intention reached the association of this case, and thus the contract of this case was legally

2. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the records, since the transfer registration of ownership in the name of the defendant was made with respect to each of the stores of this case, the plaintiff asserted that the defendant is liable for the management expenses as the sectional owner of each of the stores of this case, but the defendant asserted that the contract for the sale of this case was cancelled, and there was a claim that the defendant is liable for the management expenses as a possessor in addition to that the defendant is liable for the management expenses as a sectional owner through the reference documents as stated on December 1, 201, which was stated on the fourth date of the court below. Therefore, the plaintiff's claim of this case includes the defendant's assertion that the defendant is liable for the management expenses as a sectional owner

On the other hand, the management rules of this case, which the plaintiff is based on the defendant's obligation to pay management expenses, define "the sectional owner" as the one who has the sectional ownership of the commercial building of this case, "occupant" as the one who occupies the exclusive ownership of the commercial building of this case on the certified copy of the register (Article 5 subparagraphs 1 and 2), and stipulate that the sectional owner bears the obligation to pay expenses, etc. for the common interest related to the maintenance of buildings and business management (Article 6 subparagraph 8), and that such obligation as management expenses, etc. is jointly and severally liable with the sectional owner (Article 8). In light of the purport of the above management rules, it is reasonable to view that the "business tenant who is jointly and severally liable with the sectional owner" is not merely the one who has leased the commercial building of this case, but also the "occupant who is not the sectional owner" as the "resident who has lawfully occupied the exclusive ownership of this case.

However, according to the reasoning of the judgment below and the record, the defendant, on January 29, 200, received each of the instant stores from the association, and paid all the sale price and development expenses. On January 11, 2001, the ownership transfer registration for each of the instant stores was made, and around February 25, 2000, entered into a lease contract for the lease of each of the instant stores with F. In light of the above, there is room to deem that the defendant occupied each of the instant stores by delivery from the association.

Therefore, the lower court should have deliberated and judged whether the Plaintiff’s claim was rejected solely on the ground that the sales contract for each of the stores of this case was rescinded, but the Defendant occupied each of the stores of this case, and whether the Defendant’s obligation to pay management fees as the possessor is recognized only when the store in a business condition is delivered. Nevertheless, the lower court’s measure rejecting the Plaintiff’s claim on the ground that the sales contract for each of the stores of this case was rescinded.

The court below erred by omitting judgment or failing to exhaust all necessary deliberations, which affected the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal by the Plaintiff, 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 Kim Jae-sik et al.

Justices Yang Chang-soo

Justices Park Jae-hee in charge

Justices Go Young-young