Plaintiff

Defendant (Attorney Kim Jin-soo, Counsel for defendant-appellant)

May 8, 2009

Changwon District Court Decision 2008Da34647 Decided November 18, 2008

1. The plaintiff (Counterclaim defendant)'s appeal against the principal lawsuit is dismissed.

2. The part concerning the counterclaim in the judgment of the court of first instance shall be modified as follows:

A. The plaintiff (Counterclaim defendant) pays to the defendant (Counterclaim plaintiff) 7,584,703 won and 4,477,423 won among them with 5% per annum from May 30, 2008 to June 12, 2009, and 20% per annum from the next day to the day of complete payment.

B. The defendant-Counterclaim plaintiff's remaining counterclaims are dismissed.

3. The total costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder are assessed against the Defendant (Counterclaim Plaintiff).

4. The above paragraph 2 (a) may be provisionally executed.

1. Purport of the principal lawsuit and purport of appeal

The judgment of the first instance shall be revoked. The part against the Plaintiff (Counterclaim Defendant) ordering the Plaintiff (Counterclaim Defendant) to pay more than KRW 1,336,418 out of the part against the counterclaim of the first instance judgment shall be revoked, and the Defendant (Counterclaim Plaintiff) shall be dismissed. The Defendant (Counterclaim Plaintiff) shall pay to the Plaintiff (Counterclaim Defendant) 9,474,620 won per annum from August 3, 2006 to the delivery date of the duplicate of the present complaint from August 3, 2006 to the delivery date of the copy of the present complaint, and 5% per annum from the next day to the full payment date.

2. Claim for a counterclaim

With respect to KRW 30,338,810 and KRW 17,909,650 among them, the Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) an amount equivalent to 20% per annum from the service date of a duplicate of the instant counterclaim to the full payment date of KRW 12,429,160.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account the overall purport of the pleadings as a whole, on each video set forth in Gap evidence Nos. 2, 5, Eul evidence Nos. 3, 7, 9, 10, 11 (including each number), and Gap evidence No. 3 (including a serial number):

A. In the case of Kimhae-si, the outside-si, Kim Jong-si, a commercial building of the size of 1st and 7th above ground (hereinafter “instant building”). The whole part of the six-story stores (No. 601) and the seven-story stores (No. 701) among them are jointly owned by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the non-party 1, 2 (No. 1,4, 2/4, 1/4 in sequence of shares), and the non-party 1 and 2 are jointly owned by the Plaintiff, and the non-party 1 and 2 are co-owned from July 2006 to operate the above 601 and 701.

B. Meanwhile, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is an occupant of the instant case. The management rules (hereinafter “laws”) were enacted. Around April 1, 2008, the rules were amended and enforced from May 1, 2008, and the relevant details are as follows.

Article 12 [Management Expenses] of the Code

1. The occupants shall bear the electricity user fee, water supply and drainage fee, cleaning fee, building management expenses, office maintenance expenses, office maintenance expenses, operating expenses of various levels of meetings, and personnel expenses as management expenses;

2. The defendant shall calculate the expenses under the preceding paragraph each month and issue a notice for payment with the approval of the chairperson.

3. An occupant who has received a written notice of management expenses for the current month shall pay them within the business hours of the receiving agency by the designated date;

4. If the occupant fails to pay the management expenses by the designated date, the late payment charge shall be borne by 5% per month: Provided, That it shall not exceed 24% per annum.

Article 20 of the Revised Code (Composition, etc. of Management Expenses)

1. The management expenses shall be the sum of the items suitable for the building among the following items and the composition thereof shall be the sum, and the provisions of the Housing Act shall apply mutatis mutandis to the calculation method:

(a) General management expenses;

(ii) Cleaning expenses;

(iii) disinfection costs;

(iv) elevator maintenance costs;

5) Repair and maintenance expenses (including cleaning expenses of exterior walls);

6) Membership fees;

(g) Other service charges, etc. on behalf of others;

2. The imposition of management expenses (including expenses for the section for common use) shall be imposed on a differential basis in proportion to the area for sale by store, if there is no separate resolution of the prosperity, (Provided, That the amount of electricity, water supply, etc. for which the capacity of use by store can be verified shall be imposed separately according to the quantity of use);

§ 21. [Additional charges, shorts, shorts] of the Revised Code

1. If the tenant, etc. fails to pay the management expenses, etc. under the preceding Article, the overdue charge of 5% per month shall be added to the management expenses within three months from the day following the due date for payment, and the overdue charge of 5% of the total amount in arrears shall be imposed and collected every three months after the due date for payment

(c) The provisions of the Act on the Ownership and Management of Aggregate Buildings;

Article 12 (1) Each co-owner's share shall be based on the ratio of the area of his section of exclusive ownership.

(2) In the case of paragraph (1), if there exists an area for a section for partial common use, the area for such section for common use shall be allocated according to the ratio of the area of the section for common use owned by the sectional owners, and it shall be included in

Article 16 (1) Matters concerning the management of the section for common use shall be determined by a resolution at an ordinary meeting, except in cases under the main sentence of Article 15 (1): Provided, That preservation activities may be conducted by co-owners

(2) Paragraph (1) may be otherwise prescribed by regulations.

Each co-owner provided for in Article 17 shall bear the expenses for the management of the section for common use or other duties and gain profits accruing therefrom according to the ratio of his share, unless otherwise specified by the regulations.

D. The size of the section for exclusive use on the sixth-story owned by the Plaintiff and Nonparty 1 and Nonparty 2 is 686.685 square meters, and the section for common use is 686.5 square meters in each floor, .E.V. 46.39 square meters in each floor, 8.41 square meters in each floor, 106.437 square meters in each floor, 106.437 square meters in each floor, and the area of the section for exclusive use on the seventh-story is 70.56 square meters in each floor, and the section for common use is 48.53 square meters in each floor and 17.293 square meters in each floor of the instant building.

E. The Defendant imposed 40% of the monthly installment of the cost for issuing the management fee notice, the cost for managing company’s entrusted management, and the cost for inspecting statutory facilities in this case on equal basis to the equity right holders of the instant building or their occupants. The Defendant imposed 40% of the monthly installment of the cost for inspecting cleaning goods, the cost for consumption, such as cleaning goods, general management cost composed of telephone cost, the cost for electrical construction by the electrical safety manager, the cost for electric construction, the cost for maintaining the elevator and parking machine, the basic electricity cost, the joint electricity cost, the cost for inspecting the facilities, and the cost for monthly installment. The Defendant imposed 60% of the cost for managing the vehicle, the cost for household electricity, and the cost for managing the household in proportion to

F. The Plaintiff and Nonparty 1 and Nonparty 2 failed to pay KRW 24,820,270 of the management expenses from January 2007 to March 31, 2009, as indicated in the management expenses imposed by the Defendant pursuant to the foregoing paragraph (e) (i.e., US currency expenses, lecture maintenance expenses, electricity agency expenses, facility inspection expenses, basic electricity charges, power funds, joint electricity charges, common water supply charges, occupancy vehicle charges, individual parking expenses, Defendant membership fees, entrusted management fees, television receiving fees, electricity fees, household electricity fees, household rent, and collection fees), and deposit fees, and the amount of KRW 5,518,540 of the management expenses imposed by the Defendant. A sum of KRW 30,38,118,1810 is payable.

In this paper, based on these basic facts, the main claim and counterclaim are combined.

2. The assertion;

(1) The plaintiff's assertion

(A) The measuring instruments for electricity in each household of the instant building are all installed, and the water supply measuring instruments are not installed with 11 business places among 31 business places.

(B) The instant building has a common toilet on the 2nd floor above the ground level except the 1st floor, and the Plaintiff and the users of the Plaintiff’s her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

(C) Nevertheless, compared to the stores of the first floor where electricity is used similar to the Plaintiff, the Plaintiff bears the management expenses incurred in the course of making up the number of times by imposing the management expenses on the basis of the ratio of shares. Since the Plaintiff does not use the water for common toilets, etc. at all, it is unreasonable to impose the fees on the business establishments using the toilet, at least the fee should be imposed on each business establishment using the toilet, or to impose the management expenses in proportion to the amount of usage measured on each household measuring instrument, while imposing the management expenses in proportion to the Plaintiff’

(D) Therefore, from August 2006 to August 2007, the Defendant issued a notice for payment of management expenses over 13 times, and the aggregate amount reaches 9,474,621 won. Of this, the Defendant asserts that the Defendant’s counterclaim claim is unreasonable and groundless since the general management expenses, US dollars, expenses for maintenance of passenger capacity, electricity agency expenses, facility inspection expenses, basic electricity charges, electricity funds, common electricity charges, and the portion not imposed according to the amount of use by each household or the amount of use by each business establishment, which have not been imposed in proportion to shares, are not imposed according to the volume of each household used.

(2) The defendant's assertion

The defendant is liable to verify the quantity of use by each household, if it is possible to ascertain the quantity of use by each household, and if the per capita imposition by each household is more reasonable, it is imposed equally by each household: Provided, That where it is not possible to verify the quantity of use due to the characteristics of an aggregate building or it is reasonable to impose it in proportion to the share, and such standard is reasonable in accordance with the Act on the Ownership and Management of Aggregate Buildings,

3. Determination

A. In the case of an aggregate building, such as the instant building, particularly in the case of an aggregate building where the shares of each business establishment are different, the management expenses shall be borne equally for each business establishment with a larger share, and in the case of a smaller share, each business establishment shall be borne in proportion to the share. As seen earlier, the Act on the Ownership and Management of Aggregate Buildings provides that if there are special provisions in the management rules of an aggregate building, they shall be followed, and if not, they shall be followed. Thus, the standards for the imposition of management expenses shall be imposed in proportion to the share, as provided in the Act on the Ownership and Management of Aggregate Buildings.

However, in such a case, it is reasonable to impose administrative expenses, US dollars, river maintenance expenses, electricity agency expenses, facility inspection expenses, basic electricity expenses, electricity fund, common electricity expenses, and common water supply fees in proportion to the share of administrative expenses, etc. In this case, the defendant imposes administrative expenses in this case. Since the basic electricity fees1 out of the basic electricity fees is the basic fees determined by the defendant when the defendant enters into an electricity supply contract with Korean power, they are in the nature that the former equity right holder or the business owner should jointly bear. As to the basic electricity fees 2, the defendant's imposition of administrative expenses, US dollars, river maintenance expenses, electricity maintenance expenses, electricity inspection expenses, common electricity expenses, and common water supply expenses are difficult to calculate individual usage charges, and it is difficult to recognize that it is unreasonable for the plaintiff to use them as a whole without any reasons to recognize that the management fees for the aggregate buildings are excessively excessive to the plaintiff's owner or the plaintiff's individual usage fees for each floor regardless of their necessity or use.

B. As seen earlier, the percentage of the total oil area of the building of this case reaches about 20%, and it is reasonable to impose general management expenses, US dollars, expenses for maintaining rivers, expenses for electric power on behalf of the Plaintiff, expenses for inspection of facilities, basic electricity, electricity charges, joint electricity charges, and joint water supply charges on the basis thereof. Therefore, the management expenses and late payment charges unpaid by the Plaintiff, Nonparty 1 and 2 shall be KRW 30,338,810 as the Defendant seeks until March 31, 2009, and the amount of unpaid management expenses and late payment damages payable by the Plaintiff from January 30, 207 to April 30, 208, the Plaintiff’s duty to pay 17,47,423 won to the Defendant during the period from 17,909,650 won to 209, and the amount of late payment damages equivalent to the Plaintiff’s share of KRW 209,500 to 209,209,29,201.

C. Although Nonparty 1 and 2 together with the Plaintiff are co-owners and co-owners of subparagraphs 601 and 701 of the building of this case and joint business operators of the Moel, the Plaintiff asserts that the Plaintiff has the responsibility to pay the total unpaid management expenses, but the Defendant’s claim seeking the payment of unpaid management expenses in excess of the Plaintiff’s share is without merit, since there is no evidence to acknowledge this.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the defendant's claim of this case is justified within the scope of the above recognition and the remaining claim is dismissed as it is without merit. It is decided to accept part of the plaintiff's appeal and change the judgment of the court of first instance as above. It is so decided as per Disposition.

[Attachment]

Judges Jeon Nam-dong (Presiding Judge)