The offset sight apartment council (Law Firm Jeong, Attorney Kim Young-young, Counsel for the plaintiff-appellant)

National Day Integrated Management Co., Ltd. (Attorney Kim Jong-gil, Counsel for the defendant-appellant)

May 1, 2015

Seoul Northern District Court Decision 2013Gahap6920 Decided August 14, 2014

1. Revocation of the first instance judgment.

2. The instant lawsuit shall be dismissed.

3. The total cost of the lawsuit is borne by Nonparty 1 (the Nonparty 1) who is represented by the Plaintiff’s representative.

1. Purport of claim

Above all, the defendant shall pay to the plaintiff 214,736,569 won in collaboration with the non-party 2 with 5% interest per annum from the date of the final service of the copy of the complaint of this case to the date of the judgment of the court of first instance, and 20% interest per annum from the next day to the date of complete payment.

Preliminaryly, the defendant shall pay to the plaintiff 58,169,230 won with 5% interest per annum from the delivery date of a copy of the complaint of this case to the pronouncement date of the judgment of the court of first instance, and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the plaintiff in the judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 214,736,569 won jointly with the non-party 2 with 5% interest per annum from the day following the day of service of a copy of the petition of appeal of this case until the day of this judgment and 20% interest per annum from the day following the day of complete payment. Preliminaryly, the defendant shall pay to the plaintiff 2 52,36,030 won in collaboration with the non-party 2, and 55% interest per annum from the day following the day of service of a copy of the petition of this case until the day of this judgment, and 20% interest per annum from the next day to the day of full payment.

Defendant: The part against the Defendant among the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to that part is dismissed.

1. Judgment on the main defense of this case

A. The party's assertion

1) Defendant

According to the Rules on the Management of Set-off Apartment Apartment Housing, the chairperson shall be appointed from among the representatives of each Dong, and the representatives of each Dong may be reappointed only once. Nonparty 1 (Out-board Persons) was elected from around April 2010 to the 18th Dong representative around April 2010 and the 19th Dong representative around April 2012, so no longer is eligible to be elected from each Dong. Nevertheless, Nonparty 1 (over-board Persons (over-board Persons) is re-elected as the 20th Dong representative around April 2014 and became the chairman of the council of occupants' representatives. Nonparty 1 (over-board Persons) was elected as the 20th Dong representative and thus invalid. Accordingly, Nonparty 2 (over-board Persons) cannot be the chairman of the council of occupants' representatives. Ultimately, the lawsuit in this case is instituted by a non-representative person and is unlawful.

2) Plaintiff

On February 2012, the representatives of the 18th Dong received the provisional disposition suspending the performance of their duties to the effect that the election of the representatives of the 18th Dong at the Seoul High Court is null and void. In addition, even in the damages claim lawsuit brought against the Defendant by Nonparty 3, the representative of the 18th residents' representative council, against the Defendant, the Seoul Northern District Court 2010Gahap966, which was declared to the effect that the election of the representatives of the 18th Dong Dong, which was held around April 2010, was unlawful and invalid. Therefore, it should not be considered when determining whether to place a heavy restriction. Furthermore, the 18th council of occupants' representatives failed to properly perform its representative activities due to continuous disputes with other residents' representatives' representatives' representatives' representatives' representatives.

The following facts are not disputed between the parties, or may be acknowledged in full view of Gap evidence No. 40, 41, 42, and Eul evidence No. 66 and the purport of all pleadings:

1) The main contents of the above management rules of apartment housing applied to the election of the representative of the 18th building apartment at the offset scenic apartment that was amended on September 1, 2006 and around April 2010 (hereinafter “instant management rules”) are as follows:

(3) The president shall be elected from among the representatives of each building, and the officers shall be elected with the consent of the majority of the members of the occupants' representatives. (1) The term of office of the representatives of each building shall be two years (the term of office of the representatives of each building shall be from May 1 to April 30 of the relevant year) and the term of office of the representatives of each building shall be two years (the term of office of the representatives of each building shall be from May 1 to April 30 of the relevant year), and reappointed (the term of office of the spouse, lineal ascendant or descendant representing the owner or his owner shall be deemed to be calculated) only once.

Even after the above management rules were amended twice on October 19, 2010 and November 11, 2013, the above provisions still remain the same contents as the location of the provisions.

2) Non-party 1 (Counter-party 1) was elected as the 18th Dong representative of the above apartment on April 2010.

3) Meanwhile, Nonparty 3 filed a lawsuit claiming damages against three persons, including the Defendant, on behalf of the said council of occupants’ representatives, on behalf of the said council of occupants’ representatives. However, on May 26, 2011, the said court rendered a judgment dismissing the said lawsuit on the ground that the election of the representatives for each Dong No. 18 on May 26, 201 was null and void in breach of significant election procedures, and Nonparty 3 did not have the authority to represent the said council of occupants’ representatives. The instant case was concluded as the withdrawal of the lawsuit on January 3, 2012, which was pending in the appellate trial.

4) In addition, Nonparty 4, etc. filed an application for provisional disposition suspending the performance of duties by the president of the council of occupants' representatives and the representatives by buildings on the ground that the election of representatives by buildings by buildings by buildings by buildings by 18 becomes null and void, with the Seoul Northern District Court 2010Kahap579, Seoul Northern District Court 2010. Accordingly, the court of the first instance decided to dismiss the applicant's application on October 22, 2010, but on February 8, 2012, the Seoul High Court (2010Ra2135), which was the appellate court (20Ra2135), issued a provisional disposition suspending the performance of duties as the representative by buildings by buildings by 14, including Nonparty 1 (excluding Nonparty 1) on the ground that there is a serious defect in the procedure and its validity cannot be recognized.

5) In the election of representatives from the 19th unit of each Dong, the non-party 1 (the counter-party 1) (the counter-party 1) who was elected as the 19 unit of Dong and served as the 20 unit of Dong from April 2012. The 20 unit of Dong was elected as the 20 unit of Dong from April 2014.

C. Determination

1) In determining whether the restriction on the appointment of representatives by buildings as stipulated in the instant management rules constitutes the restriction on the appointment of representatives by buildings, it is reasonable to view that, for the following reasons, rather than whether the election of representatives by buildings was invalidated, it should be based on whether the elected representatives by buildings actually perform their duties.

(1) The restriction on the mid-term appointment of representatives by buildings seems to be aimed at preventing any harm that may occur in the event that a specific household holds the same representative status for a long time in an apartment jointly owned by many households, by preventing the light position of the council of occupants' representatives of apartment buildings and the duties of representatives by buildings, and division and Ban between the council of occupants' representatives and the occupants of apartment buildings (see Supreme Court Decision 9Da12437, Nov. 24, 2000).

② The instant management rules have been set up prior to the enactment of the Enforcement Decree of the Housing Act on July 6, 2010, which provides that the restriction on the aggravation of employment has been set up in the Enforcement Decree of the Housing Act, and that “the term of office of the owner, his spouse, or lineal ascendant or descendant representing the owner shall be deemed to have been computed,” and take a more strict attitude as to the restriction on the aggravation of employment

(3) Even in cases where an election of a representative by a building is invalidated due to procedural or detailed defects in the election, there may be cases where the representative elected in the election does not have difficulty in performing his/her duties, and where it is found that the election was invalidated after the term of office has expired. In such cases, the fact that the representative was acting as the representative, regardless of the legal effect of the act done as the representative, does not lose the effect itself.

(4) In addition, in determining whether a representative of each building is reappointed, the purport of the above restriction on appointment should be fully considered, and the interpretation that conforms to the above purport shall conform to the substantive standard, not to the formal standard of whether the election of the representative of each building was invalidated, but to the actual standard of whether the representative of each building actually worked as the representative

2) Comprehensively taking into account the following circumstances revealed from the above facts of recognition and the evidence as the basis for recognition, even if the election of the representative of the 18th apartment building in the above apartment building is invalid due to a serious defect in the procedure, the non-party 1 (the non-party 1 (the non-party 1) who was elected as the 18th Dong representative in the above apartment building is deemed to have actually performed his duties as the 18th Dong representative. Thus, in determining whether to restrict the appointment of the representative of each building, the non-party 1

① From April 2010 to February 2012, Nonparty 1 (in the case of Nonparty 1 (in the case of Nonparty 1) exercised the authority of the said representative for about one year and ten months from the date of election as the 18th Dong-dong representative, and from February 2012, the issuance of the above provisional disposition decision. The restriction of performance of duties due to the above provisional disposition decision is only two months during the two-year term of office.

② The Plaintiff asserts that the 18th council of occupants’ representatives (the president Nonparty 5) existed, and Nonparty 1 (the non-party 1) could not exercise its authority as the representative of each building. However, in light of the fact that the 18th council of occupants’ representatives, the president of the 18th council, filed a lawsuit claiming damages against the Defendant, as seen earlier, it is insufficient to recognize the Plaintiff’s assertion solely based on the statement of evidence Nos. 17 through 22, and there is no other evidence to prove otherwise.

3) Therefore, the non-party 1 (the non-party 1 (the counter-party 1) who was in office as the representative of the 18th and 19th unit shall be deemed not to be eligible to be appointed as the representative of the building. The re-election of the non-party 1 (the counter-party 1) as the representative of the 20 unit unit is null and void because it violates the instant management rules, and thus, the non-party 1 (the counter-party 1) cannot be the chairman of the 20 unit council of occupants' representatives. Ultimately, the lawsuit of this case brought by the non-party 1 (the counter-party 1) as the representative of the plaintiff, which

2. Conclusion

The instant lawsuit is unlawful and thus ought to be dismissed. The judgment of the court of first instance is unlawful. Accordingly, the judgment of the court of first instance is revoked, and the instant lawsuit is dismissed, and pursuant to Articles 108, 107(2) and 107(1) of the Civil Procedure Act, the litigation cost is assessed against Nonparty 1 (the Nonparty 1) who filed the lawsuit without a qualification to represent the Plaintiff. It is so decided as per Disposition.

Judges Lee Jin-man (Presiding Judge)