(영문) 대전지방법원 2016.1.27.선고 2015가합100697 판결

1. It is confirmed that between the plaintiff A and the defendant C management body, the authority for each work described in attached Form 1. As to the C commercial building located in Seo-gu, Daejeon is against the plaintiff A.

2. As between the Plaintiff A, B and the Defendant C Management Body:

A. On August 28, 2012, the resolution that Defendant D as a custodian is invalid at the meeting of the Defendant C management body held on August 28, 2012.

B. It is confirmed that Defendant D is not in the position of the manager of Defendant C management body. It is confirmed that Defendant E is not in the position of the chairperson of Defendant C management body.

3. The Defendants delivery of each of the real estate indicated in attached Form 2 to the Plaintiff C Service, Inc.

4. The costs of lawsuit shall be borne by the Defendants.

5. Paragraph 3 can be provisionally executed.

Purport of claim

The same shall apply to the order.

Reasons

1. Basic facts

A. C building (hereinafter referred to as the “instant commercial building”) is located in Seo-gu, Daejeon. The building is located in Seo-gu, Daejeon.

B. Plaintiff C Service Association (hereinafter referred to as “Plaintiff C Service Association”) is an organization composed of shop occupants of the instant commercial building, and Plaintiff A is the owner of the instant commercial building No. 53, and Plaintiff B is the owner of the instant commercial building No. 436, respectively.

C. Defendant C management body (hereinafter referred to as “Defendant C management body”) is a management body under the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as “Act on the Ownership and Management of Aggregate Buildings”) composed of sectional owners of the instant commercial building (the Plaintiff asserted that Defendant C management body was an illegal organization not a management body under the Act on the Ownership and Management of Aggregate Buildings at the time of the instant lawsuit, but Defendant C management body asserted that it was a management body under the Act on the Ownership and Management of Aggregate Buildings, during the instant lawsuit

D. The dispute progress between the plaintiffs and the defendants surrounding the right to manage the commercial building of this case is as shown in attached Form 3.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, 37 and the purport of the whole pleadings

2. A request for confirmation of authority (a claim against the plaintiff A's defendant management body);

A. The plaintiff A's assertion

The plaintiff A is a superstore manager of the commercial building of this case, which is a superstore under the Distribution Industry Development Act. Since the management authority of the commercial building of this case is for A, who is not the defendant management body, the right to each business listed in attached Form 1 (hereinafter referred to as "each business of this case") is sought confirmation from the plaintiff A.

B. Determination on the main defense of this case

1) Defendant managing body’s assertion

In Supreme Court Decision 2007Da83427 Decided October 13, 201, Supreme Court Decision 2007Da83427 Decided October 13, 201 has decided on the business of a superstore operator and a management body under the Act on Distribution Industry Development and a management body under the Act on the Ownership and Management of Aggregate Buildings. Of the lawsuit in this case, the part of the claim for confirmation of the above authority is nothing more than confirming the above judgment.

2) Determination

A) Plaintiff A, rather than seeking confirmation on the above legal doctrine, sought specific confirmation that the authority for each business of this case is a superstore manager under the Distribution Industry Development Act, based on the above legal doctrine, and Defendant A continues to engage in administrative affairs, such as imposing management fees on shop occupants of this case. As such, Plaintiff A has a benefit to seek confirmation.

B) The main defense of the Defendant managing body is without merit.

C. Judgment on the merits

1) Whether Plaintiff A is a superstore manager

A) The contents of Article 12 of the Distribution Industry Development Act related to the instant case are as follows (Article 6(2) of the Enforcement Rule of the Distribution Industry Development Act defines a person who has completed a report pursuant to Article 12(3) of the said Act as a large-scale manager.

Article 12 (Duties, etc. of Operators of Large Store, etc.) (1) of the Distribution Industry Development Act shall perform the following duties: The operator of a superstore, etc., shall establish the order of commercial transactions; Act No. 1358, Feb. 2, 201; Act No. 13094, Feb. 29, 2011; Act No. 13094, Feb. 3, 2011>

B) In addition to the overall purport of the pleadings, the statement in the evidence Nos. 58 and 59 reveals that there is no person who directly operates at least 1/2 of the area of the commercial building in this case; ② a corporation under the Civil Act or the Commercial Act established with the consent of at least 2/3 of the salesroom occupants; a cooperative or a business cooperative under the Small and Medium Enterprise Cooperatives Act; and a self-management organization; ③ a person who is at least 1/29 out of 252 salesroom occupants of the commercial building in this case designates the Plaintiff A as the person who operates the superstore of the commercial building in this case; ④ the Plaintiff reported the superstore management to the head of Seo-gu Daejeon Metropolitan City, Daejeon Metropolitan City as the superstore manager of the commercial building in this case; and ⑤ the head of Seo-gu, Daejeon Metropolitan City, the head of Dong-gu, may recognize the issuance of the written confirmation of the superstore manager to the Plaintiff on August 12, 2015.

C) According to the above facts, Plaintiff A constitutes a superstore manager of the instant commercial building.

2) The competent authority over each of the instant tasks

A) Relevant legal principles

The Distribution Industry Development Act grants a general authority on the maintenance and management of a superstore to a superstore manager established by a large-scale store manager who is not a management body under the Act on the Ownership and Management of Aggregate Buildings, but regulates interests between the sectional owners and the large-scale store occupants in the management of a large-scale store by requiring the large-scale store manager to follow the regulations established by the management body, which is the organization of sectional owners, or the resolution of the management body to hold a management body. Considering the legislative intent of the Distribution Industry Development Act and the relationship with the Act on the Ownership and Management of Aggregate Buildings, the term "matters related to the separate ownership" excluded from the business of the large-scale store manager, which is a matter related to the maintenance and management of a large-scale store, should be interpreted as a matter that may conflict with the rights of the large-scale operator or the large-scale manager, or infringe on the ownership of the large-scale operator. In light of the above legal principles, the duty of imposing and collecting management fees, which is the cost of maintaining and managing the large-scale store owner's ownership or ownership.

B) Determination

(1) In light of the above legal principles, Plaintiff A, a superstore operator of the instant commercial building, has the authority to perform the duties necessary for the maintenance and management of the instant commercial building.

(2) Of the instant business affairs, “the duty of imposing and collecting management fees” in attached Form 1.1 is either the management fees for the instant commercial building, or for the maintenance and management of both the section for exclusive use and the section for common use, and thus, the instant commercial building is subject to the need to maintain and manage the instant commercial building in a uniform manner for the common interest of the entire shop occupants. Therefore, it constitutes a conflict with the ownership of the shop owners or a concern that the ownership

(3) Of the instant tasks, each of the tasks listed in [Attachment 1.2.2.5 [Attachment 1.2] constitutes tasks necessary for the maintenance and management of a superstore, which are related to the establishment of commercial order through the operation of a superstore and the use of its common facilities, and the protection and convenience of consumers, rather than “matters related to the classification for the rational exercise of ownership among sectional owners and the control thereof.”

(4) The authority over each of the instant tasks lies in Plaintiff A, a superstore manager.

D. Sub-determination

The claim for this part of this case between the plaintiff A and the defendant management body, who is a superstore manager, is justified to seek confirmation that the right to each of the affairs of this case is against the plaintiff A.

3. A request to nullify a resolution and to confirm the existence of status (request against the defendant management body A and B).

A. The plaintiff A and B's assertion

Defendant D and E did not have been duly elected as the custodian or the management chairperson of the Defendant management body. The above Plaintiffs, as the sectional owners of the instant commercial building, sought confirmation that the resolution on the appointment of the management body against Defendant D was null and void, and that there was no status of each of the aforementioned Defendants.

B. Determination on the main safety defense of Defendant management body

1) Defendant managing body’s assertion

Defendant D’s claim for confirmation of invalidity of the appointment of a custodian in the instant lawsuit and the claim for confirmation of absence of the status of a custodian is unlawful as there is no benefit of confirmation, inasmuch as the term of office expires on August 31, 2014 while performing duties by being elected as the custodian of Defendant D’s management body on August 28, 2012.

2) Determination

A) In a lawsuit for confirmation, where there exists a dispute between the parties as to the legal relationship subject to confirmation, and thereby, it is recognized as the most effective and appropriate means to determine the legal status of the plaintiff as the confirmation judgment in order to eliminate such apprehension and danger (see, e.g., Supreme Court Decision 2009Da93299, Feb. 25, 2010). In addition, even in the past legal relationship, even if it affects the current rights or legal status, and in a case where it is deemed as a valid and appropriate means to obtain a confirmation judgment in relation to the legal relationship in order to eliminate the risk or apprehension of the current rights or legal status, the lawsuit for confirmation of the legal relationship should be deemed as having the benefit of immediate confirmation (see, e.g., Supreme Court Decisions 92Da40587, Jul. 27, 1993; 94Meu153, Sept. 29, 195).

B) In addition to the overall purport of the pleadings, the term of office of Defendant D’s custodian appears to have been terminated on August 31, 2014. Meanwhile, in addition to the overall purport of the pleading in the statement in evidence No. 93, Defendant management body may recognize the fact that around November 2015, Defendant D sent the notice of management expenses, stating the payment account of management expenses as the deposit account in one bank account in Defendant D’s name, to the salesroom occupants.

C) According to the above facts, Defendant D appears to have performed his duties as a manager even after the expiration of his term of office on August 31, 2014, and Defendant D’s act continues to affect the current rights or legal status of Plaintiff A and B, a sectional owner of the instant commercial building, and is highly likely to affect the future. As such, Plaintiff A and B have legal interests to seek confirmation of the invalidity of the resolution that Defendant A appointed Defendant D as a manager and confirmation that Defendant D is not in the position of manager.

D) The main defense of the Defendant managing body is without merit.

B. Judgment on the merits

1) The contents of the Aggregate Buildings Act relating to the instant case are as follows.

Article 23 (Obligatory Establishment, etc. of Managing Body) (1) If a sectional ownership relationship is established for a building, a building and its site consisting of all sectional owners.

Article 24 (Appointment, etc. of Manager) (3) The manager shall be appointed or dismissed by a resolution of the managing body's meeting: Provided, That if the regulations provide that the management body shall be appointed or dismissed by a resolution of the managing body's meeting pursuant to Article 26-2, the management body may be established as prescribed by the regulations.Article 26-2 (Establishment and Functions of Managing Body) and (1) of the management body in accordance with the regulations.Article 26-3 (Organization and Operation of Managing Body) (1) of the management committee shall be elected from among sectional owners by the resolution of the managing body's meeting: Provided, That if the regulations provide otherwise for the resolution of the managing body's meeting, it shall be governed by the regulations.Article 29 (Establishment, Revision, and Abolition of Regulations) (1) of the regulations, the amendment and repeal of the regulations shall be approved by not less than 3/4 of the sectional owners and by not less than 3/4 of voting rights at the managing body's meeting.Article 38 (Method of Resolution) (1) of managing Body's meeting)

2) Determination as to invalidity of a resolution on appointment of custodian and claim for confirmation of absence of status of custodian

A) In addition to the written evidence No. 3 and evidence No. 18-1 and No. 18-2, Defendant D was appointed as a custodian with the consent of 79 voting participants in the voting for the appointment of the manager of the Defendant Management Body that was implemented on August 28, 2012, and the total sectional owners of the instant commercial building at the time of the appointment of 285 persons can be acknowledged.

B) In violation of the provisions of Articles 24 and 38 of the Aggregate Buildings Act, which provides that the defendant management body shall appoint a manager by resolution of a majority of sectional owners, a resolution that appoints defendant D as a manager who did not receive a consent from a majority of sectional owners, shall be deemed null and void due to its procedural defect. It cannot be deemed that defendant D is in the position of a manager of

3) Determination on the claim for confirmation of non-existence of the position of the management chairperson

A) In addition to the overall purport of the pleadings, the following facts and circumstances can be acknowledged in the statement Nos. 3 and 17-1 to 5 of the evidence Nos. 17.

① The management regulations of the Defendant managing body were enacted with the consent of 93 members of the Defendant managing body on November 25, 201. Meanwhile, the number of sectional owners of the instant commercial building appears to be 285. Therefore, the said management regulations are invalid due to a serious defect not meeting the quorum (at least 3/4 of the sectional owners and at least 3/4 of voting rights) under Article 29 of the Aggregate Buildings Act.

② A management body under the Act on the Ownership and Management of Aggregate Buildings may have a management body pursuant to its rules. As seen earlier, the management regulations of the defendant management body are invalid. Thus, the management committee of the defendant management body was established without any legal basis.

(3) Even if the management regulations of Defendant E are lawful, there is no evidence to deem that Defendant E were elected as the chairperson of the management committee through the procedure (election by a resolution of a majority of the members of the management committee) stipulated in Article 18(2) of the Management Regulations of Defendant E.

B) In light of such facts and circumstances, Defendant E cannot be deemed to be the position of the chairman of the management body of Defendant E, and as Defendant E is dissatisfied with this, there is a benefit to seek confirmation from Plaintiff A and B.

C. Sub-decision

The above plaintiffs' claims seeking confirmation of the absence of status of the chairman of the management committee against the defendant A, B and the management body of the commercial building of this case, the resolution of appointment of the manager and the absence of status of the manager against the defendant D, are justified.

4. Claim for the delivery of real estate (claim against the Defendants of the Plaintiff Association);

A. The plaintiff prosperitys argument

Since the Defendants possess each of the real estate listed in Attachment 2, which is owned by the Plaintiff Association, the Defendants are obligated to deliver each of the above real estate to the Plaintiff.

B. Determination on the main defense of this case

1) Defendants’ assertion

The part concerning the claim for delivery of real estate among the instant lawsuits is unlawful as it is filed by the Plaintiff A, which cannot be viewed as a legitimate representative of the Plaintiff’s prosperity for the following reasons.

① On March 17, 2015, the Plaintiff prosperity passed a general meeting to elect the president at the general meeting of the board of representatives, and at the representative meeting held on the same day, the Plaintiff A was elected as the president of the board of representatives of the board of representatives of the board of representatives. However, there was a defect in holding the said general meeting without a notice for convening part of the members of the board of representatives. Furthermore, there was a defect in failing to meet the quorum set forth in Article 17(1) of the rules of the board of directors. Accordingly, the resolution of the said general meeting cannot be deemed legitimate as the Plaintiff A, who was appointed as the president at the representative meeting held on the premise of the resolution at the meeting of the said general meeting of delegates

② On July 7, 2015, the first floor G council of Plaintiff prosperity (hereinafter referred to as “first floor G council”) held an extraordinary general meeting and passed a resolution to elect Plaintiff A as the chairperson of the first floor G council. The above resolution is invalid due to the absence of defects, such as violating Articles 10 and 14 of the 1st floor G council rules. Thus, Plaintiff A cannot be deemed the chairperson of the first floor G council.

③ The Plaintiff A shall not be qualified as an executive officer under Articles 6 and 12 of the Rules of the Plaintiff’s prosperity by failing to pay management expenses to the Plaintiff’s prosperity.

2) Determination

A) After the procedural acts conducted by the representative of an unincorporated association, the representative of the unincorporated association shall have retroactive effect upon ratification of the procedural acts (see Supreme Court Decision 96Da2527, Mar. 14, 1997).

B) With respect to the instant case, the rules of the Plaintiff Association, the rules of the Plaintiff Association Management, and the rules of the first floor of the Plaintiff Association are as follows.

2. The members of the plenary session shall be the operators of each shop and juristic persons of the stores which are operated within the stores of the sellers of the stores or the shops (qualified persons shall take precedence over the occupants of the stores). 3. The qualification of the members shall be one per head of the stores in the case of individuals, and in the case of juristic persons, one representative director or one person designated by the representative director or the representative director shall be qualified. The representative of each 6th floor self-governing Meeting (G Council) and the chairman, the chairman of the board of directors, and the standing auditors shall be established to exercise overall control over the overall matters of the committee, and the matters concerning the operation of the management office shall be decided by the consultation of the plenary session. The chairman, the chief vice-chairman, and the representatives of the G council (the chairman) shall be elected from among the members of the plenary session with the consent of a majority of the members of the committee who hold the section for exclusive use of the shops, or who hold the section for exclusive use within the name of the chairman, and the chairman shall, in principle, be elected by the chairman of the committee.

The purpose of this meeting is to promote the common interests of shop occupants and to secure a good commercial environment by prescribing matters necessary for the management and use of incidental facilities and welfare facilities owned jointly by shop occupants in Seo-gu Seoul Special Metropolitan City and their sites and accessories located within the Seo-gu Special Metropolitan City, which may be convened by the chairperson to make a decision on all the matters, and the matter shall be decided with the majority of the incumbent executives present.The purpose of this meeting is to promote the common interests of shop occupants and to secure a good commercial environment by prescribing the matters necessary for the management and use of incidental facilities and welfare facilities and their sites and accessories located within the Seo-gu Special Metropolitan City.The tenant of Article 2 (Definition of Terms) refers to the owner of the common property which is the object of separate ownership.The representative of each floor shall be one person for each floor.

C) First, we examine whether the Plaintiff A is the legitimate president of the Plaintiff prosperity.

In light of the following circumstances, Plaintiff A cannot be deemed the lawful president of the Plaintiff Subdivision, in light of the respective descriptions of the evidence Nos. 6-1, 2, 9-1, 3, and 10-1 and 2, which are known by adding the whole purport of the pleadings to the respective descriptions of the evidence Nos. 6-1, 6-2, and 9-1

① It is reasonable to see that the concept “registered members” under Article 17 subparag. 1 of the Rules of the Plaintiff Madows Association includes all the sectional owners (based on the actual occupants if both sectional owners and lessees exist at the same time) of the instant commercial building. Accordingly, the Plaintiff Madows Association asserts that the sectional owners of the instant commercial building are not members of the Plaintiff Madows Association, but the said interpretation itself goes against the language and text of the rules and management rules of the Plaintiff Madows Association.

② On March 17, 2015, in the presence of 59 members on March 17, 2015, the Plaintiff prosperity decided to hold a general meeting and elect the president of the Plaintiff prosperity at the representative general meeting. Of 21 representatives on the same day (including 6 delegates) held a representative general meeting and passed a resolution to elect the Plaintiff A as the president. On the other hand, the sectional owners of the instant commercial building at the time the said general meeting was held was 285.

③ The above general meeting was held after the sectional owners in the factory of this case were excluded, and the resolution to elect the president at the general meeting of the representative general meeting is not effective due to serious defects which failed to meet the quorum set forth in Article 17 subparagraph 1 of the rules of the council of representative. Accordingly, the resolution to elect Plaintiff A as the president at the general meeting of representative general meeting is not valid on this premise.

D) We examine whether Plaintiff A is a legitimate representative of the president of the Plaintiff prosperity.

In light of the following circumstances, it is reasonable to view that the Plaintiff A is a legitimate first floor G council chairperson, and the Plaintiff’s representative for the chairperson of the Plaintiff prosperity pursuant to Article 16 of the Rules of the Plaintiff Subdivision, in light of the following circumstances, which can be seen by adding the overall purport of the pleadings to the respective descriptions of evidence Nos. 40, 41, 45, and 10, respectively.

① On May 19, 2015, in the proceeding of the instant lawsuit, part of the members of the Plaintiff prosperity filed an application with the Plaintiff A for the suspension of performance of duties and the appointment of an acting representative under this court’s 2015Kahap50107. This court rejected the application for the suspension of the obligees’ performance of duties on June 26, 2015, on the ground that “the application for the suspension of duties by the obligees shall be accepted, but the application for the appointment of an acting representative shall be determined pursuant to Article 16 of the Rules of the Plaintiff Subdivision.”

② The G Council of the first floor, excluding the first floor, held a general meeting before and after the filing of the instant lawsuit, and passed a resolution to elect the president of the G Council of each floor. However, each of the above resolutions did not obtain the consent of 2/3 or more of the members of the G Council of the respective floor, including the sectional owners of each floor of the instant commercial building, and it is null and void because there is a serious defect in failing to meet the requirements (the representatives of each floor shall be elected with the consent of 2/3 or more of the occupants of the relevant floor before the expiration of the term of office) set forth in Article

③ On July 7, 2015, the first floor G council: (a) held a first floor G council with the consent of at least 2/3 of the general meeting members pursuant to Article 6 of the Rules, from among at least 39 members, at the request of at least 1/3 of the general meeting members (including sectional owners in a factory room) and elected Plaintiff A as the chairperson of the first floor G council with the consent of at least 15 members, pursuant to Article 14 of the Rules. (b) On the other hand, the first floor G council with the consent of at least 2/3 of the general meeting members. On the other hand, the first floor G council with the first floor prescribed that the chairperson of the first floor is to be elected at the first floor at the general meeting with the first fifth floor. On the other hand, it appears that the first floor council with the first floor was inevitably elected by the chairperson of the G council with the remaining 1st floor members excluded from the sectional owners of the general meeting with the second floor prior to July 7, 2015. Furthermore, the first floor G council with the first floor elected of the second floor is difficult.

E) We examine whether the Plaintiff A did not pay management expenses.

(1) The evidence submitted by the Defendant alone is insufficient to recognize the fact that the Plaintiff A failed to pay management expenses to the Plaintiff Association, and there is no other evidence to acknowledge it.

(2) Rather, the following circumstances can be acknowledged, which can be seen by adding the overall purport of the pleadings to each statement in Gap evidence Nos. 69 through 80.

① On October 31, 2014, Plaintiff A paid 12,739,190 won for unpaid management expenses related to the 53th underground floor of the instant commercial building, which is owned by Plaintiff A, to the Plaintiff prosperity.

② Although the Defendant alleged that Plaintiff A did not pay management expenses imposed on Plaintiff A with respect to 164, the shop occupants under the above 164 are not Plaintiff A but their children, even if the management expenses for the above 164 were unpaid, it cannot be said that Plaintiff A did not pay management expenses.

F) Ultimately, Plaintiff A is the president of the G Association elected through legitimate procedures among the presidents of the respective floors of the instant commercial building, who is the legitimate president of the Plaintiff G Association pursuant to Article 16 subparagraph 2 of the Rules of the Plaintiff G Association.

G) The Plaintiff A’s filing of the instant lawsuit as the representative of the Plaintiff Subdivision was retroactively effective when the instant lawsuit was brought. The Defendants’ principal safety defense is without merit. Determination on the merits is without merit.

1) In addition to the contents and images of evidence Nos. 15, 37, and 95 as well as the overall purport of the pleadings, the following facts can be acknowledged: (a) The Plaintiff Association is the owner of each real estate (No. 88,92 on the ground that the instant commercial building was the owner of each real estate (No. 1st floor No. 88,92), and (b) the Defendants used each of the above real estate as the office of

2) The Defendants are obligated to deliver each of the above real estate to the Plaintiff prosperity.

5. Conclusion

The plaintiffs' claims shall be accepted for all reasons, and it is so decided as per Disposition.