2014Da46273 Return, etc. of sale price

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. J;

10. K;

11. M;

12.N

P Co.

Seoul High Court Decision 2013Na59977 Decided June 12, 2014

November 13, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to whether or not the sectional owner, the quasi-section owner or the sectional owner has the appearance of the sectional owner bears the obligation to pay the management expenses

For the reasons indicated in its reasoning, the lower court determined that: (a) the registration of transfer of ownership was null and void; and (b) the sales contract in this case was completely rescinded; (c) the Plaintiffs, who have the appearance of a sectional owner, quasi-sectional owner, or sectional owner, cannot be deemed to bear the obligation to pay management expenses to the Defendant; and (d) contrary to the relevant legal principles and records, the lower court’s aforementioned determination is justifiable; and (e) contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of logic and experience and the principle of

2. As to whether the possessor bears the obligation to pay the management expenses

A. The lower court rejected the Defendant’s assertion that the Plaintiffs were liable to pay management fees to the Plaintiffs, on the ground that it appears that it was impossible, barring special circumstances, to uniformly use and benefit from the object of sale that the Plaintiffs purchased without excluding the buyers of the adjacent Gu units.

B. However, we cannot accept the judgment of the court below for the following reasons.

1) Article 5 subparag. 1 and subparag. 2 of the instant management rules, which the Defendant’s obligation to pay management expenses, defines “the sectional owner” as the one who has the sectional ownership on the register of the shareholders, “occupants” as the one who possesses the section of exclusive ownership on a commercial building (Article 5 subparag. 1 and subparag. 2), and Article 6 subparag. 8 of the sectional owner bears the obligation to pay expenses, etc. for the common interest related to the maintenance of buildings and management (Article 6 subparag. 8), and such obligation to pay management expenses, etc. is jointly and severally liable with the sectional owner (Article 8). However, in light of the purport of the above management rules, it is reasonable to view that “the owner who is jointly and severally liable for management expenses” is not merely the one who has leased the section of exclusive ownership, but also the one who has lawfully occupied the section of exclusive ownership on a commercial building as the one who is not the sectional owner (see Supreme Court Decision 2012Da54058, Nov. 15, 2012).

2) Review of the reasoning of the lower judgment and the record reveals the following circumstances.

① The judgment of the court below is that the section for exclusive use in each of the plaintiffs' future registration of ownership cannot be recognized as valid registration because it has structural independence and independence in use. However, the plaintiffs received each registration from the seller in order to obtain ownership as the buyer who fully paid the sale price and development cost, and it seems that the registration was invalid for a considerable period after the completion of the O's work. Although the registration is invalid, the plaintiffs were willing to obtain the transfer of possession of the object at the time of each registration, barring any special circumstances.

② At the time of entering into the instant sales contract with the seller, each part of exclusive ownership was specified in its unit, and the size of the unit shall be about 1.5 square meters, and the size of the unit shall be increased or decreased. Since the area differs significantly from the size of each unit actually constructed, it is difficult to readily conclude that each part of exclusive ownership by the plaintiffs was not specified or that the transfer of possession itself was impossible.

③ However, in the case of the 7th and the 8th floor, the plaintiffs were constructed to combine three rooms so that they can be used as one store, each unit room alone does not recognize independence in structural structure and use. Since the shape of each unit constructed is a type of rectangular office with approximately KRW 0.75 to 0.8m wide, approximately KRW 6.1 to 6.7m long, it was impossible to use it for each unit of office for independent restaurant as originally planned.

④ Under such circumstances, the number of buyers of the 70th and the 8th and upper floors established the '70th and upper floors' council, and the 8th and upper floors were suspended after remodeling works, it seems that the plaintiffs attempted to make various forms of efforts for the use and profit-making of each unit of the 77th and upper floors. However, most of the plaintiffs appear to have never been able to use and profit-making each unit of the 7th and upper floors in reality, and only 3 units of the 7th and upper floors were constructed through consultation with the number of buyers in neighboring units, and there was a lot of rent or use (in the case of Plaintiff N, it is difficult to conclude a lease contract with the 50,000 won and monthly rent 10,000 won, and the lease contract with the 107th and upper floors continued to be removed from each unit of the 207th and upper floors of the 207th and upper floors of the 107th and upper floors of the 207th and upper floors of the 207th and upper floors of the sale.

3) As such, regardless of the validity of the registration of the sale price and development cost, the Plaintiffs had legitimate authority to exclusively occupy and use each unit of exclusive ownership regardless of the validity of the registration, and furthermore, were intended to commence possession, but it was difficult for the Plaintiffs to actually use and profit-making, except for some Plaintiffs due to construction errors. Therefore, the lower court should have determined whether each Plaintiff is liable to pay management fees on the ground that the Plaintiffs constitutes a “resident who has lawfully occupied the exclusive ownership of the commercial building,” based on the structure and possibility of the use of each unit and store, the form of the purchase price, the period of use, and the reasons for suspension.

Nevertheless, the court below did not fully consider these circumstances and concluded that all the plaintiffs can not be viewed as possessing each unit of exclusive ownership immediately. This is erroneous in the misapprehension of the legal principles on the possession of the unit of occupant, which is the premise of the obligation to pay management expenses, which is the premise of the obligation to pay the management expenses.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.

The presiding judge shall keep the record of the Justice

A person shall be appointed.