[1] Where a small-sum case does not meet the requirement of “when a decision contrary to the precedents of the Supreme Court has been made,” which may be the ground of appeal, but the Supreme Court can determine the error in interpreting and applying the substantive law

[2] The meaning of "matters related to the separate ownership" that are excluded from the duties of a superstore manager under the former Distribution Industry Development Act, and whether the restriction or alteration of the business type of a commercial building constitutes "matters related to the separate ownership" (affirmative)

[1] Article 3 subparag. 2 of the Trial of Small Claims Act / [2] Article 12(1)3, (2), and (4) of the former Distribution Industry Development Act (Amended by Act No. 14997, Oct. 31, 2017); Articles 23 and 28 of the Act on the Ownership and Management of Aggregate Buildings

[1] [2] Supreme Court Decision 2018Da37857 Decided December 27, 2019 (Gong2020Sang, 351) / [1] Supreme Court Decision 2003Da1878 Decided August 20, 2004 (Gong2004Ha, 1571), Supreme Court Decision 2012Da48824 Decided March 26, 201 / [2] Supreme Court Decision 2007Da83427 Decided October 13, 201 (Gong201Ha, 2293), Supreme Court Decision 201Da79258 Decided November 29, 201 (Gong2013Sang, 17)

○○○ shopping mall Management Group (Law Firm Dongin, Attorneys Kim Hong-woo et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Central District Court Decision 2017Na50302 Decided August 24, 2018

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Grounds of appeal as to small claims

In a case where there is no precedent of the Supreme Court on the interpretation of statutes applicable to a specific case in a small-sum case, where there is a number of small-sum case, the issue of which is the interpretation of the same Act is pending in the lower court, and there is a case where the Supreme Court makes a decision on what kind of case according to the full bench, the legal safety of people’s lives may be harmed if the case is terminated without making a decision on the interpretation of statutes on the grounds that it is a small-sum case. In such a case where there is no special circumstance, even though the Supreme Court did not meet the requirement that “when it makes a decision contrary to the precedents of the Supreme Court,” which can be a ground for appeal, it may be determined as to the mistake of interpreting and applying substantive laws in order to perform the fundamental function of the Supreme Court, which is the unification of statutory interpretation (see, e.g., Supreme Court Decisions 2003Da1878, Aug. 20, 2004; 201

2. Whether the Plaintiff unlawfully interfered with the use

A. The former Distribution Industry Development Act (amended by Act No. 1497, Oct. 31, 2017; hereinafter “former Distribution Industry Development Act”) grants a general authority for the maintenance and management of a superstore to a superstore manager who is established with the consent of occupant-merchants, not a management body established by the Act on the Ownership and Management of Aggregate Buildings that is naturally established by all sectional owners, but a superstore manager who is established with the consent of occupant-merchants. However, “matters related to sectional ownership” are governed by the provisions of the Act on the Ownership and Management of Aggregate Buildings, such as the rules established by the management body as the organization of sectional owners or the resolution of the management body meeting. Considering the legislative purport of the former Distribution Industry Development Act; the relationship between the former Distribution Industry Development Act and the Act on the Ownership and Management of Aggregate Buildings, the term “matters related to sectional ownership” excluded from the duties of the manager of a superstore should be construed as matters that conflict with or are likely to conflict with the exercise of a sectional owner’s ownership and the ownership of a sectional owner if permission is granted to a superstore manager or a superstore manager (see, etc.

Where a commercial building is an aggregate building subject to the regulation of the Act on the Ownership and Management of Aggregate Buildings and it is necessary to jointly manage the building as a result of the commencement of sale in lots and the commencement of occupancy, a management body under Article 23 of the Act on the Ownership and Management of Aggregate Buildings consisting of all sectional owners including sectional owners of the unsold section of exclusive ownership at the time of the establishment of a management body is naturally established. After the establishment of a management body, the management body may newly establish or change the restriction on the type of business through the management body regulations stipulated in Article 28 of the Act on the Ownership and Management of Aggregate Buildings. These restrictions on the type of business basically include the meaning of guaranteeing the exclusive management right of the relevant type of business to the buyer or sectional owners, so it is necessary to make an agreement by the buyer or sectional owners who are not third parties, such as lessees, to

Therefore, the restriction or alteration of the type of business of a commercial building constitutes a "matters related to the separate ownership" that may conflict with the exercise of the ownership by a sectional owner or infringe on the ownership of a sectional owner if permitted to the superstore operator or the superstore manager, and it is not included in the business necessary for the maintenance and management of the original superstore.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) The Defendant is a co-owner of the △△△△△△△△△△△△△△ (hereinafter “instant shopping mall”) among the seven underground floors and the 16th floor shopping mall (hereinafter “instant shopping mall”) located in Jung-gu, Seoul.

(2) The shopping mall management body of this case, which is a management body under Article 23 of the Act on the Ownership and Management of Aggregate Buildings, is to promote collective admission points that lease each floor of five, six, and seven stories of shopping malls in a lump sum in order to revitalize the shopping mall, and received consent from the sectional owners, including the defendant, to promote collective admission.

(3) According to Article 41 of the Management Rules of the shopping mall of this case, matters concerning the change of the type of business of each floor and additional allocation are decided by the Steering Committee of the shopping mall management body of this case composed of representatives from each floor. Accordingly, the Steering Committee of the shopping mall management body of this case decided on November 12, 2009 that the existing business items of the five, six, and seven stories shall be moved to other floors and the corresponding floor shall be changed to the "domestic and foreign brand salesroom occupants, the UN Entertainment, and the promotion center for attracting conventions exhibitions" with the purport of changing the existing business items of the shopping mall management body of this case to the "those items prior to attracting group admission."

(4) When the salesroom occupants operating on the seventh floor of the shopping mall of this case moved to another floor in accordance with the resolution of November 12, 2009 and the seventh floor was vacant, the shopping mall management body of this case took measures, such as cutting electricity, cutting off, escalator, and suspending the operation of elevators on the seventh floor for the safety management of the store around March 2010.

(5) After several times, the contract was concluded, but it was not concluded. On August 3, 2012, the steering committee of the shopping mall management body of this case held the restoration of its own items and its enforcement period as an agenda item. The agenda item to be returned to the unique items before the change was made by the resolution of November 12, 2009 was resolved, but it was rejected as a quorum for the enforcement period. The shopping mall management body of this case did not return its own items to the original items.

(6) On September 4, 2013, the Plaintiff completed a report on the shopping mall of this case to the head of Jung-gu Seoul Metropolitan Government pursuant to the former Distribution Industry Development Act, and processed the imposition and collection of management expenses as a superstore manager’s qualification.

C. We examine these facts in light of the legal principles as seen earlier.

The change of the business item of the shopping mall of this case and the transfer of all the seven-story shop occupants to different floors is made by the resolution of November 12, 2009 of the Management Committee of the shopping mall of this case. Since August 2012, the Defendant was unable to use the shopping mall of this case for the original purpose was due to the fact that the Steering Committee of the Management Committee of the shopping mall of this case failed to resolve on August 3, 2012 to allow individual business to be operated on the seven-story because it was impossible to recover from the seven-story because the Plaintiff did not supply electricity, water, etc. to the seven-story. It is difficult to view that the return of the unique item of each story of this case constitutes a restriction or change of the business type of the commercial building, and is not included in the Plaintiff’s business established by the tenant manager. It is unreasonable for the Defendant to take measures to regulate the interests of the tenant and the tenant of this case and to the Plaintiff, as otherwise prescribed by the former Management Committee of the Distribution Industry Development Act and the former Management Committee.

Therefore, it is difficult to view that the Plaintiff interfered with the use and profit of the instant shopping mall management body, etc. by illegally closing the instant store or maintaining the closure of the store, even if the Defendant claims damages against the management body, etc.

Nevertheless, the lower court rejected the Plaintiff’s claim for management expenses on the ground that the Plaintiff illegally obstructed the Defendant’s use and profit-making of the instant store. In so doing, the lower court erred by misapprehending the legal doctrine on the duty to pay management expenses by sectional owners, thereby adversely affecting the conclusion of the judgment

3. Conclusion

The Plaintiff’s appeal is with merit, and 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.

Justices Lee Dong-won (Presiding Justice)