2019Na27094 (Main Claim)

2020Na26356 (Counterclaim Management Expenses)

1. A;

Daegu Western-gu

2. B

Daegu Western-gu

[Judgment of the court below]

[Defendant-Appellant] Defendant 1

C Limited Liability Company

Seoul Yeongdeungpo-gu Seoul Metropolitan Government 115, 14 floors of Doll Building (Inndo-dong)

Representative D Co., Ltd. (Representative E, F, G)

Law Firm Taeek, Attorney Tae-soo et al.

○○, ○, ○, ○, ○, ○○

Busan District Court Decision 2018Gahap52284 Decided December 12, 2019

on March 10, 2021

April 21, 2021

1. All claims filed by the plaintiff (Counterclaim defendant) that have been changed in exchange in the trial of the party are dismissed.

2. According to the counterclaim claim filed at the court of the first instance, the Plaintiff (Counterclaim Defendant) pays to the Defendant (Counterclaim Plaintiff), 14,32,291 won, 5% per annum from December 1, 2020 to December 11, 2020, and 12% per annum from the next day to the date of full payment.

3. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) by aggregating the principal lawsuit and the counterclaim.

4. Paragraph 2 can be provisionally executed.

1. Purport of claim

A. Claim of the main claim: The plaintiff (hereinafter referred to as "the plaintiff") does not bear the obligation to pay the management expenses of each item stated in the "Items of Attached 1" imposed by the defendant on the defendant (the counter-appellant; hereinafter referred to as "the defendant") as the management expenses from August 2018 to October 2020 for Daegu Jung-gu (the plaintiff was changed from the trial to the claim for confirmation of the existence of the obligation) (the plaintiff changed the claim for damages based on illegal acts or nonperformance brought by the court of first instance to the claim for confirmation of the existence of the obligation).

B. Claim of counterclaim: Section 2 of the Disposition (the defendant filed a counterclaim at the trial).

2. Purport of appeal

The judgment of the first instance is revoked. The same shall apply to the purport of the principal lawsuit.

A principal lawsuit and counterclaim shall also be deemed a principal lawsuit and counterclaim.

1. Basic facts

가. 피고는 집합건물인 대구 중구 소재 ▲▲ 건물(이하 '이 사건 집합건물'이라 한다)을 신축하여 이를 원시취득한 후 2017. 9. 27. 주식회사 ▼▼(이하 ‘이 사건 임차인’이라 한다)와 사이에, 피고가 이 사건 임차인에게 이 사건 집합건물 중 구분소유건물인 제1층 제104호를 '임대보증금: 2억 원, 월 차임: 순매출의 15%, 임대기간: 점포의 개점 일부터 7년'으로 정하여 임대하는 계약(갑 제3호증의 1)을 체결하였는데, 위 계약 중 관리비에 관한 부분은 아래와 같다.

Article 6 (Management Expenses)(1) The lessee shall pay the direct management expenses (electric and water supply and drainage fees) used at a lessor's store as the costs of the lessee. (2) The public management expenses shall be non-existent: Provided, That all kinds of taxes and public charges (road occupation charges, environmental improvement charges, electricity safety management expenses, traffic congestion charges, etc.) related to the use of the leased object shall be paid in proportion to the common lessee.

B. Around May 2018, the Defendant entered into a contract (A evidence 3-2, hereinafter referred to as the "lease contract of this case") under which the leased object was changed from the first floor No. 104 to the first floor No. 107 (hereinafter referred to as the "building of this case") and the lease period was changed from April 27, 2018 to the seven-year period from April 26, 2025 to April 26, 2025 (hereinafter referred to as the "lease").

C. On July 16, 2018, the Plaintiffs entered into a contract with the Defendant to purchase KRW 3,454,750,000 (hereinafter “the instant sales contract”) the instant building from the Defendant (hereinafter “the instant sales contract”), and paid KRW 300 million on July 16, 2018, and KRW 3,135,951,030 on July 30, 2018. The Plaintiffs completed the registration of ownership transfer (the Plaintiff’s share 1/2) in relation to the instant building on July 30, 2018, by succeeding to the status of the lessor under the instant rental contract, and thereafter leasing the instant building to the lessee under the instant rental contract.

D. On September 2018, the Defendant continuously claimed the payment of the public use expense to the Plaintiffs as the management expense for the common use area of the instant building, etc. on August 1, 2018, but the Plaintiffs did not pay the public use expense to the Defendant from that time.

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 4, 7, Gap's 6-1 through 3, Eul's 3, 7 through 9, and the purport of whole pleadings

2. Whether the plaintiffs' obligation to pay public management expenses exists (esteem)

A. Summary of the parties' assertion

1) The defendant's assertion

The defendant manages the common areas of the instant aggregate building, and the plaintiffs are co-owners of the common areas of the instant aggregate building at the same time, which are co-owners of the instant aggregate building, so the management expenses for the said common areas must be paid to the

The defendant claims against the plaintiffs as a counterclaim for the payment of the official management expenses from August 2018 to October 2020.

2) The plaintiffs' assertion

For the following reasons, the Defendant cannot claim against the Plaintiffs the payment of the official management expenses from August 2018 to October 2020 under each item of the “Items 1 of the Official Management Expenses” related to the instant building. Therefore, the Plaintiffs seek confirmation of the absence of the obligation to pay the official management expenses as the principal lawsuit.

① The Defendant does not fall under the management body under the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the “ Aggregate Buildings Act”) and is not a manager who has been duly authorized by the management body, and did not set forth and deliver to the Plaintiffs the matters corresponding to the management rules by notarial deeds pursuant to Article 9-3(2) of the Aggregate Buildings Act.

② Common management expenses of the instant aggregate building are not the owner of the instant building, but the lessee of the instant aggregate building who actually uses common areas of the instant aggregate building.

B. Legal principles

According to the Act on the Ownership and Management of Aggregate Buildings, a section other than a section of exclusive ownership, a section attached to a building not belonging to a section of exclusive ownership, and a section for common use pursuant to Article 3(2) and (3) of the Act on the Ownership and Management of Aggregate Buildings (Article 2 subparag. 4); a section for common use belongs to all sectional owners (Article 10); each co-owner shall bear the cost of managing the section for common use according to the ratio of his/her share unless otherwise provided by the regulations (Article 17); a seller shall manage the building, site and attached facilities with due care of a good manager until the management body commences management under the Act on the Ownership and Management of Aggregate Buildings (Article 9-3(1)); a co-owner of an aggregate building bears the cost of managing the section for common use and other obligations according to the ratio of his/her share (Article 17); and a manager appointed by the management body shall have the authority to claim and receive the share of expenses and expenses for the management of affairs of the management body, and to manage such money (Article 25(1).

According to Article 688(2) of the Civil Act, if a mandatary bears an obligation necessary for the management of delegated affairs, he/she may require the mandator to perform the obligation on his/her behalf.

C. Determination

The Defendant did not correspond to the management body under the Act on the Ownership and Management of Aggregate Buildings and was not delegated with the management authority of the instant aggregate building by the management body, and the Defendant did not determine and deliver to the Plaintiffs the matters corresponding to the management rules by notarial deeds, and the fact that the instant lessee, not the Plaintiffs, actually uses the instant building, does not conflict between the parties.

In full view of the circumstances under the following (1) through (3), the defendant is obligated to pay the expenses incurred by the defendant to manage the common areas among the instant condominiums in accordance with Article 9-3 (1) of the Aggregate Buildings Act as co-owner of the instant condominiums, because it is recognized that the management body manages the instant aggregate buildings with due care as a good manager before commencing the management of the instant aggregate buildings pursuant to Article 9-3 (1) of the Aggregate Buildings Act, and the defendant is entrusted with the management of the common areas of the instant condominiums by the plaintiffs pursuant to Article 2 (7) of the sales contract of this case. Thus, the plaintiffs as co-owner of the instant condominiums (each 1/2 shares), who is a section for exclusive use (each 1/2 shares), is obligated to pay the defendant

① As seen earlier, the Plaintiffs are co-owners of the instant condominiums, and thus, they own co-ownership shares in common areas among the instant condominiums.

② According to the facts without dispute between the parties, the entry of the evidence No. 3 and the whole purport of the pleading, the following facts are acknowledged:

After newly constructing the instant aggregate building and acquiring it from the original owner, the Defendant entered into a service contract on the management, maintenance, and repair of the instant aggregate building between B/L Co., Ltd. and B/L Co., Ltd. from the date of completion of the instant aggregate building, and entrusted B/L to B/L Co., Ltd. with the security and security management, cleaning and hygiene management, parking lot management, landscaping, and quarantine control.

under the Act on the Ownership and Management of Aggregate Buildings, the management body of the aggregate buildings of this case is naturally constituted.

However, the building of this case is leased to the lessee of this case by succeeding to the lessor’s status under the instant lease contract after the Plaintiffs acquired ownership of the building of this case on July 30, 2018.

B. Article 2(7) of the sales contract of this case(Evidence No. 4, No. 3) provides that "the building management service contract of this case shall maintain the contract with the existing management company except in extenuating circumstances before the building management body is formed later."

③ Article 2(7) of the instant sales contract delegated the Defendant with the management of the joint portion of the instant condominium, and the Defendant appears to have agreed to manage the joint portion of the instant condominium in the manner that the existing management service business chain entrusted the management of joint ownership of the instant condominium to BBB Co., Ltd.

3. Judgment on the plaintiffs' assertion

(a) Whether the obligation to pay management expenses for public use is exempted (unlawful);

1) The plaintiffs' assertion

Article 6 (2) of the Lease Agreement between the Defendant and the lessee of this case provides that "No public management expenses shall be deemed to exist." The Defendant exempted the possessor of the building of this case from the obligation to pay the management expenses for the common use of the aggregate building of this case to the possessor of the building of this case under the status of the seller or de facto manager of the condominium building of this case

Since the plaintiffs succeeded to a lessor status under the lease contract of this case, the defendant cannot claim the payment of management expenses for common areas of this case against the plaintiffs who are the indirect occupants of the building of this case.

2) Determination

As seen earlier, ① the Defendant, the original purchaser of the instant aggregate building, as a seller, manages the instant aggregate building with due care as a good manager before the management body commences the management of the instant aggregate building pursuant to Article 9-3(1) of the Aggregate Buildings Act; ② the Defendant newly constructed and owned the instant aggregate building, concluded a lease contract with the lessee, and leased the instant building; ③ Article 6(2) of the instant lease contract provides that “the instant lease contract shall be deemed to have no public use management expenses; ③ the Plaintiffs shall continue to lease the instant building to the lessee by succeeding the lessor’s status under the instant lease contract after the Plaintiffs purchased the instant building from the Defendant.

The following facts are examined: ① The Defendant, as a seller, manages the instant aggregate building with the care of a good manager before the management body commences the management of the instant aggregate building pursuant to Article 9-3 (1) of the Aggregate Building Act; ② the co-owners of the instant aggregate building should bear the expenses in proportion to their co-ownership; ② the lease contract of this case is effective only between the parties to the instant lease contract, and even if the Defendant agreed to exempt the lessee from the management expenses for the instant aggregate building, the lessee does not have the obligation to exempt the above management expenses for the instant aggregate building; ③ the Plaintiffs acquired the ownership of the instant building from the Defendant and succeeded to the lessor’s status in accordance with the lease contract of this case; and simultaneously the Defendant did not claim management expenses for the instant aggregate building against the lessee pursuant to Article 6 (2) of the instant lease contract, even if the Defendant agreed not to claim the management expenses for the instant aggregate building against the Defendant, the Plaintiffs, who are not the lessee, may not claim the management expenses for the instant aggregate building pursuant to the said Article. Furthermore, the remainder of the Plaintiffs’ assertion is without merit.

B. Determination on other allegations

1) The plaintiffs' assertion

Although the defendant has a duty to notify the plaintiffs that there is a provision that "the contract of this case does not have the official management expenses" (Article 6 (2)) at the time of entering into the contract of this case with the plaintiffs, it did not notify the plaintiffs.

If the defendant notified the plaintiffs of the above provision, the plaintiffs succeeded to the lessor's status under the lease contract of this case and could claim management expenses for common areas of the condominium of this case to the lessee of this case, but the defendant could not do so on the wind that violated the above duty of disclosure. Thus, the defendant cannot claim management expenses for common areas of the condominium of this case against the plaintiffs.

2) Determination

According to the overall purport of Gap evidence Nos. 4, 5, Eul evidence No. 9-1, 2, Eul evidence No. 1, 2, 5, and Eul evidence Nos. 6-1 through 5, the defendant delivered the lease contract of this case to the extent that the defendant mediated the contract of this case with the plaintiffs' delegation at the time of the conclusion of the contract of this case. In light of the fact that the defendant delivered the contract of this case to the extent that he arranged the contract of this case, the testimony of the first instance witness type and the evidence submitted by the plaintiffs are insufficient to recognize that the defendant did not notify the plaintiffs of Article 6 (2) of the lease contract of this case,

Even if the defendant notified the plaintiffs of Article 6 (2) of the Lease Agreement, there is no evidence to prove that the plaintiffs concluded a separate agreement excluding the validity of Article 6 (2) with the lessee of the case.

Therefore, the plaintiffs' assertion is without merit.

4. The amount of legitimate public use management expenses.

As seen earlier, the plaintiffs are obligated to pay the expenses that the defendant paid to manage the common areas among the aggregate buildings in this case pursuant to Article 9-3 (1) of the Aggregate Buildings Act to the defendant according to the plaintiffs' share ratio.

The management expenses for common areas of an aggregate building are not only expenses disbursed for the direct maintenance and management of the common areas of an aggregate building, but also expenses disbursed for the whole maintenance and management of an aggregate building including a section for exclusive use, and thus it is necessary to uniformly maintain and manage an aggregate building for the common interest of all occupants. Therefore, if it is not clearly distinguishable from expenses used for the part to which it actually and specifically reverts for the individual interest of the occupants, it is reasonable to view that all of them are included (see, e.g., Supreme Court Decision 2004Da3598, 3604, Jun. 29, 2006).

According to the overall purport of evidence Nos. 7, 9, 16, and 19, each of the items stated in the "Items 1" attached from August 2018 to October 2020, which the Defendant spent between the minutes of August 2018 to October 2020, it is necessary to uniformly maintain and manage the instant aggregate building for the common interest of the entire occupants. The expenses spent uniformly at the overall level of the instant aggregate building and the expenses paid for the direct maintenance and management of the common interest of the instant aggregate building. Of the above amounts, the amount to be borne by the Plaintiffs according to the share ratio of the Plaintiffs as to the common interest of the instant aggregate building is recognized as total 28,64.583 won.

Accordingly, the Plaintiffs’ co-ownership amounting to KRW 14,32,291 (=28,664,583) to the Defendant according to their respective co-ownership shares

Inasmuch as the Defendant’s claim for counterclaim has a duty to pay 5% per annum as stipulated by the Civil Act from December 1, 2020 to December 11, 2020, the delivery date of a duplicate of the counterclaim of this case, and 12% per annum as stipulated by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment, the Defendant’s claim for counterclaim of this case has merit, and there is no ground for the Plaintiffs’ claim for counterclaim of this case.

5. Conclusion

The plaintiffs' claims for counterclaim which have been changed in exchange at the trial of the trial are all dismissed as without merit (the judgment of the court of first instance was withdrawn due to the exchange modification at the trial). The defendant's claims for counterclaim added at the trial of the trial of the trial of the trial of the trial of the trial of the trial of the court of first instance are accepted

Judges of the presiding judge;

Judges Authorized-type Judge

Judges Kim Jong-hwan

A person shall be appointed.

A person shall be appointed.