[1] In a case where a contract for sale in lots or a management body agreement under Article 28 of the Act on the Ownership and Management of Aggregate Buildings provides a restriction clause on business type, whether it is possible to change a category of business category according to an agreement between the buyers or third parties such as lessees, not by themselves, but by the sectional owners (negative)

[2] Whether a management body under Article 23 (1) of the Act on the Ownership and Management of Aggregate Buildings is naturally established in a case where there is a building on which the relationship of sectional ownership is constituted (affirmative), and whether a sectional owner of an unsold section of exclusive ownership also becomes a member of the management body (affirmative)

[3] The case holding that the alteration of a limited type of business designated at the time of sale did not obtain the consent of an organization falling under the management body composed of sectional owners or the consent of shop owners capable of operating the existing competitive business, it cannot be deemed that it had gone through a legitimate procedure of alteration of the limited type of business under the initial contract for sale

[1] In a case where a contract for sale in lots or a management body agreement under Article 28 of the "Act on the Ownership and Management of Aggregate Buildings" provides a restriction on the change of a type of business to any extent, and whether to absolutely prohibit a change of a type of business or to allow a change of a type of business to a certain extent can be freely determined by the parties in accordance with the principle of private autonomy. The permission, scope, procedure, etc. of a change of a type of business should be determined through reasonable interpretation of the contract for sale in lots or the management body agreement, etc. However, even in this case, determination of the type of business to be conducted by the seller in lots to a certain number of buyers or the sectional owners to exclusively operate each category of business between the buyers or the sectional owners is within the meaning of guaranteeing that the saler or the sectional owners should exclusively operate the category of business. In this case, the exclusive status of the buyers or the sectional owners who purchase ownership can not be changed by agreement between the buyers or the

[2] The management body under Article 23 (1) of the Act on the Ownership and Management of Aggregate Buildings is not an organization established only through organization acts, but in the case of a building which is established by sectional ownership, it is naturally an organization established by all sectional owners as members. Thus, if the sale of an aggregate building is commenced and the necessity of joint management arises due to the commencement of occupancy, a management body consisting of all sectional owners, including the sectional owners of the unsold section for exclusive use at the time of such commencement.

[3] The case holding that in the case of change of a limited business type designated at the time of sale in lots, if the consent of an organization corresponding to the management body composed of sectional owners or the consent of shop owners capable of operating the existing competitive business, it cannot be deemed that it had gone through a legitimate procedure of change of the limited business type under the initial sale contract

[1] Article 105 of the Civil Act, Article 28 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 23(1) of the Act on the Ownership and Management of Aggregate Buildings / [3] Article 105 of the Civil Act, Article 23(1) and Article 28 of the Act on the Ownership and Management of Aggregate Buildings

[2] Supreme Court Decision 94Da49687, 49694 decided Mar. 10, 1995 (Gong1995Sang, 1590), Supreme Court Decision 94Da27199 decided Aug. 23, 1996 (Gong1996Ha, 2797), Supreme Court Decision 97Da19625 decided Aug. 29, 1997 (Gong1997Ha, 2879), Supreme Court Decision 2002Da45284 decided Dec. 27, 2002 (Gong2003Sang, 506)

Plaintiff 1 and two others (Attorney Cho Ho-young et al., Counsel for the plaintiff-appellant)

Large-scale shopping malls Association

Defendant 1 and one other (Law Firm Kim, Kim & Lee, Attorneys Kim Tae-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na75386 delivered on July 25, 2003

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Facts of recognition;

According to the records, the following facts are recognized.

A. On January 15, 1992, Nonparty 1 sold the price of KRW 195 million to Nonparty 2, who sold it to Defendant 3 on May 27, 2000. Defendant 3 sold the ownership transfer to Plaintiff 2 on June 15, 200, Defendant 3 sold the ownership transfer to Plaintiff 2 on June 15, 200, and Defendant 3 sold the ownership transfer to Plaintiff 2 on June 15, 200, and Defendant 3 sold the ownership transfer to Nonparty 3, without omitting Defendant 3’s registration.

On the other hand, around July 26, 2000, Plaintiff 3 leased the above B101 from Plaintiff 2, and runs a funeral business from around that time.

B. On November 13, 1992, Nonparty 3 purchased 202 housing units (38.625 square meters in exclusive use area, 40.191 square meters in common use area, and 78.816 square meters in total) among the instant commercial buildings from the Daelim industry as a real estate brokerage business, and Plaintiff 1 purchased the above 202 housing units from Nonparty 3 on July 222, 2000 and completed the registration of transfer of ownership. From December 30, 2000, Plaintiff 1 is running real estate brokerage business at this place.

C. On March 22, 199, Defendant 1: (a) entered into a contract with the Daelim Industry under which the head of 214 of the instant commercial buildings (20.5625 square meters of exclusive use area, 125.4507 square meters of public use area, 246.0132 square meters of supply area) was sold in lots in the amount of KRW 400 million; and (b) the use column of the subject matter is indicated as residential convenience facilities; (c) each commercial building shall be opened for the purpose stipulated in the sale plan (or sale advertisement) but, in the case of changing for other purposes, each commercial building shall be opened for the purpose stipulated in Article 7(a) of the contract; (d) entered into an agreement with the Daelim Industry to follow the regulations on prior consultation with, or autonomous management of commercial buildings; and (e) separately agreed with the Daelim Industry to enter into a consultation with the organization for management of commercial buildings following the establishment of the type of business under the foregoing subparagraph 214.

Defendant 2 initially leased the above 202 from Nonparty 3 to engage in real estate brokerage business, and continued to engage in real estate brokerage business by leasing part of the above 214 units from Defendant 1 to Defendant 1 on August 10, 1999. Defendant 2 leased a part of the above 202 units, which was co-defendant 214 of the judgment below, and the ○○○○○○○ was a co-defendant 214 unit, and the 'the 'the 'the 'the 'the 'the 'the 'the 'b

D. Defendant 3, from July 3, 1996, sold 226 units of the instant commercial building (226 units of exclusive use area, 100.9538 square meters of common use area, 127.497 square meters of supply area, 228.4512 square meters of supply area, 228.45.12 square meters of the instant commercial building) to a 150,000 square meters and carried on the business of an undeveloped site at the place. The facility column of the sales contract is divided from 225 units of the above 226 units, but it was designated as a financial business (securities) for the initial sale advertisement. Defendant 3 was originally leased 302 units of commercial building among the instant commercial buildings on November 21, 1993 and transferred the right of lease to Nonparty 26 and Nonparty 3 on May 25, 1997.

E. When selling each shop of the shopping districts in this case, the Daelim Industry entered into a sales contract, including an agreement that restricts the change of the type of business, and the sales contract between the buyers and the buyers, which includes the agreement that "as the principle of business designated at the time of the sale, the buyer may open only the type of business approved by the large forest industry to the extent that there is no competition. Before the number of 2/3 of the stores in this case is sold, the manager designated by the large forest industry shall manage the commercial buildings, but if the commercial building management committee is organized, the buyer shall have the right and duty to join as its members, and when changing the type of business, he shall obtain approval from the next commercial management committee."

2. Determination on the appeal by Defendant 1 and Defendant 2

A. As to the violation of the rules of evidence as to the limited type of business at the time of sale by Defendant 1 among the commercial buildings of this case

The court below determined that the sale contract form prepared by Defendant 1 as convenience facilities for living convenience from March 22, 199 as follows: (a) although the purpose of use was stipulated in Article 7 of the contract clause as sale advertisement; (b) the purpose of use was designated as a par value food store; (c) Defendant 1 entered the sale contract concerning subparagraph 214 as well as the purpose of use specified in the sale plan (or sale advertisement) with the large forest industry in consultation with the large forest industry or the regulations on the autonomy of commercial buildings; and (d) Defendant 1 entered the sale contract form as a facility for convenience facilities for living convenience of the large scale store in consultation with the chairman of the commercial building of this case; and (e) Defendant 1 entered the sale contract form as daily convenience facilities for living convenience facilities of this case in consultation with the large scale industry or the actual status of operation of restricted stores; (e) it was reasonable to see that the sale contract form as daily convenience facilities of this case was prepared as facilities for sale convenience facilities of this case excluding the standard terms and conditions of the sale contract form approved by the Fair Trade Commission.

Examining the relevant evidence in light of the records, the fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to the prohibition of competition, as otherwise alleged in the ground of appeal.

B. As to the procedure for changing the restricted category of business and the violation of the rules of evidence concerning the quorum for the resolution of the shopping mall of this case

(1) The court below held that the Defendants’ above-mentioned shopping mall No. 1 and the above-mentioned business management rules No. 2 were 000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,00,00,00,00,00,00,00,00,00.

(2) In the case of establishing a contract for sale in lots or a management organization agreement under Article 28 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Act on the Ownership and Management of Aggregate Buildings"), the scope of restrictions on the change of business type, whether to absolutely prohibit the change of business type or to allow the change of business within a certain scope can be freely determined by the parties in accordance with the principle of private autonomy, and the permission, scope, procedure, etc. of the change of business type should be determined through reasonable interpretation of the sale contract or management organization agreement, etc. However, even in this case, determining the type of business that the sale company is to sell in lots or sell in lots to the buyers, or among the sectional owners, the type of business that the sale company is to operate in a store that is the object of divided ownership is basically within the meaning of guaranteeing the exclusive operation of the sale company or the sectional owners. In this case, the exclusive status of the buyers or sectional owners who purchase ownership can not be changed by an agreement between the buyers or the lessees

In addition, the management body under Article 23 (1) of the Aggregate Buildings Act is not an organization established only through an organizational act, but where there is a building which constitutes a sectional ownership relationship, it is naturally an organization established with all sectional owners as members. Thus, if the sale of an aggregate building is commenced and the necessity for joint management arises due to the commencement of occupancy, a management body is established with all sectional owners including the sectional owners of the unsold section of exclusive ownership at the time (see Supreme Court Decision 2002Da45284 delivered on December 27, 2002).

However, according to the facts duly admitted by the court below and the records, when selling each shop of this case, the Daelim industry entered into a sales contract including an agreement that restricts the change of the type of business between the buyers and the seller of this case, which includes an agreement that restricts the change of the type of business. "A manager designated by the Daelim industry until 2/3 of the number of stores of this case occupies a commercial building, but the seller has the right and duty to join the commercial building as a member if the commercial management committee is organized, and the seller has the right and duty to join the commercial building."

In full view of the above legal principles and the above facts, in the case of the commercial building of this case, the consent of the substitute forest industry as the seller should be obtained, but after the two-thirds of the commercial building of this case were sold in lots, the commercial management committee must obtain approval from the commercial management committee. There is no ground to deem that all the buyers are members of the commercial management committee. On the other hand, in the case of the commercial building of this case, only ownership is sold in lots, the buyer of this case refers to the person who clearly purchased ownership, i.e., the sectional owner, regardless of its title. Thus, the above commercial management committee shall be deemed to mean the management committee, which is the organization of sectional owners under the Act on the Ownership and Management of Aggregate Buildings. Accordingly, in the case of the commercial building of this case, the right to approval for changing the type of business stipulated in the sale contract of this case

However, with respect to whether the shopping mall association falls under the management body under the Act on the Ownership and Management of Aggregate Buildings, Article 3 of the prosperity charter of this case provides that "this rule shall apply to the establishment of rights, interests, and friendship among the occupants of the shopping mall, and for the smooth development of the facility management and the shopping mall," and Article 5 provides that "in principle, the members of the shopping mall shall be the occupants of the shopping mall directly operating within the shopping mall." Article 3 of the prosperity management rules provides that "This rule shall aim to promote the common interest and promote friendship of the occupants by prescribing the use necessary for the management and use of the facilities pursuant to Article 38 of the Housing Construction Promotion Act and Article 9 of the Decree on the Management and Operation of the shopping mall." Article 5 subparagraph 1 of the prosperity charter of this case provides that "when the right to use the shopping mall is acquired or lost, the right to use the shopping mall shall be established, regardless of whether the right to use it belongs to the owner's exclusive ownership or not." Article 7 subparagraph 1 of the 1 provides that "No one voting system and its basic regulations shall be established."

Therefore, the prosperity association of this case cannot be deemed a management body under the Aggregate Buildings Act, and it is obvious that Defendant 1 did not obtain the consent of the management body or the consent of the store owner who is composed of sectional owners so that Defendant 1 can carry on real estate brokerage business or the undeveloped business at the 214 shop that was sold in lots. Thus, it cannot be deemed that Defendant 1 had gone through a lawful procedure of change of the category of restricted business under the initial sales contract because it is apparent or recorded by itself that Defendant 1 did not obtain the consent of the management body or the consent

Although the judgment of the court below is erroneous in the determination of the approval procedure for the alteration of the limited industry under each of the sale contracts in this case, it is reasonable to reject the defendants' defense that the restricted industry has been legally changed. Therefore, the above violation of the rules of evidence, etc. do not affect the conclusion of the judgment and there is no error of law as otherwise alleged in the grounds of appeal. Therefore, all of the grounds of appeal are without merit.

C. As to the violation of the rules of evidence regarding the implied waiver of the right of prohibition of business and the loss of the business category of the commercial building of this case

The court below held that the above non-party 2 did not object to the non-party 1's right of prohibition of sale because it did not object to the non-party 3's non-party 1's non-party 2's non-party 1's non-party 1's non-party 3's non-party 2's non-party 1's non-party 1's non-party 2's non-party 3's non-party 1's non-party 9's non-party 1's non-party 1's non-party 9's non-party 3's non-party 3's non-party 9's non-party 3's non-party 9's non-party 3's non-party 1's non-party 4's non-party 9's non-party 1's non-party 9's non-party 1's non-party 1's non-party 1's non-party 9's non-party 9's non-party 1'.

3. Determination on Defendant 3’s appeal

A. misunderstanding of facts and misunderstanding of legal principles concerning designation of the type of business at the time of sale

(1) The lower court determined that Defendant 3’s above assertion was groundless since Defendant 3 agreed to conduct business only for the designated purpose in accordance with the sale advertisement (sale plan) with the large forest industry, and to follow the procedure set forth in the instant shopping mall in order to change the type of business, since Defendant 3 purchased 226 from the large forest industry as a neighborhood living facility, which is not a financial business (securities) and the US Forest business was included in the above neighborhood living facility.

(2) The following facts are revealed in light of the records, namely, Defendant 3: (a) was aware of the fact that the store was designated as the category of business from 226 to 302, etc.; (b) Defendant 3 filed a lawsuit against Defendant 1 on the ground that the store was operated without undergoing a normal change of business type; (c) Defendant 3 was entitled to receive the agreed amount; (d) Defendant 3 was designated by some interested parties to change the type of business designated in the sale advertisement into the 226th unit, and obtained approval of the above 26th unit; and (e) Defendant 26th unit of 200,000 square meters from 26th unit of 30,000 square meters; and (e) Defendant 96th unit of 26th unit of 70,000 square meters from 26th unit of 70,000 square meters of 26th unit of 70,000 square meters of 76th unit of 706th unit of 20,000.

Of the grounds of the judgment of the court below, it is erroneous in the judgment of the court below that the above defendant agreed to follow the procedure set by the Commercial Building Lease Association in order to change the above defendant to another business than the designated use under the contract for sale in lots (in the case of the commercial building of this case, after the management body under the original contract for sale in lots was formed under the Act on the Ownership and Management of Aggregate Buildings, the right to approve the change of the business type specified in the contract for sale in lots has a management body under the Act on the Ownership and Management of Aggregate Buildings) and the defendant 3 can operate only as a financial business, which is the use specified in the contract for sale in lots. However, the judgment of the court below which rejected the defendant's argument that the undeveloped commercial building business of this case can be operated only as a financial business, which is the use specified in the original contract for sale in lots, is justified, and there is no error of law such as mistake of facts as above, and there

B. As to the violation of the rules of evidence regarding the consent of interested parties on the alteration of the business use of 226

First of all, with respect to Defendant 3’s non-party 3’s non-party 1’s first buyer under B101 designated as non-party 3’s non-party 3’s non-party 3’s non-party 1’s consent to the non-party 1’s non-party 3’s non-party 3’s non-party business operation at the time of commencement of the non-party 3’s non

In addition, the part that the non-party 2 acquired B101 from the above non-party 1 did not have any circumstance to view that the consent of the non-party 2 was effective against the non-party 2 on the records, and that the non-party 3 occupied and used the non-party 26 stores, and that the non-party 27 adjoining the 226 stores are different from the owner, the trade name and specific business contents of the non-party 226 stores are installed separately, and the two stores are divided into walls. The non-party 26 and 227 are deemed to have been aware of the above non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 3's non-party 2's non-party 2's non-party 26's non-party 2's non-party 27's non-party 27's non-party 29's non-party 2.

This part of the argument is ultimately based on the cooking judgment and fact-finding of the evidence, which is a fact-finding court, or is different from the original court's opinion and cannot be accepted as it is a tree.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the Defendants. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)