Plaintiff (Counterclaim Defendant) 1 and one other (Law Firm Seoul et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Law Firm Bab, Attorneys Yellow-soo et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Defendant 2 (Law Firm Bab, Attorney Yellow-in, Counsel for the defendant-appellant)

October 18, 2012

Seoul Central District Court Decision 2010Gahap132249 Decided October 5, 2011

1. Revocation of a judgment of the first instance;

2. The plaintiff (Counterclaim defendant)'s main claim is dismissed.

3. The defendant-Counterclaim plaintiff's counterclaim filed in the trial is dismissed.

4. The plaintiffs deliver to the defendant (Counterclaim) the part of the 1,328.78 square meters underground and the 2nd underground floor 958.90 square meters underground among the buildings listed in the attached list as a result of the return of provisional payment to the defendant (Counterclaim Plaintiff).

5. The part of the total cost of the lawsuit and the cost of filing an application for the return of the provisional payment shall be borne by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) by the counterclaim.

6. Paragraph 4 can be provisionally executed.

1. Purport of claim

The principal lawsuit: Defendant 1 (Counterclaim Plaintiff; hereinafter “Defendant”) and Defendant 2 shall deliver to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) each part of the 1,328.78 square meters of underground floor and 958.90 square meters of underground second floor among the buildings listed in the attached list.

Counterclaim: The Plaintiffs filed a counterclaim against Defendant 1, respectively, on the part of 1,328.78 square meters of underground floor and 958.90 square meters of underground floor among the buildings listed in the attached list (Defendant 1 raised a counterclaim against Defendant 1 in the first instance trial).

2. Purport of appeal

It is as set out in paragraphs 1 and 2 of this Decree.

3. Purport of request for the return of provisional payments

Paragraph 4 of this Article.

1. Basic facts

The following facts may be acknowledged, either in dispute between the parties or in full view of the purport of the entire pleadings in each video of the evidence Nos. 1 through 15, 20, Eul evidence Nos. 1 through 8, 10, 24 through 31, 35, 37, 38, 41, 44, and 45 (including each number; hereinafter the same shall apply) and Eul evidence No. 9:

A. The Non-party 2 Housing Redevelopment Association (hereinafter “Non-party 2”) promoted a housing redevelopment project that newly constructs a road of 28 roads, new town 2 complex of 1273 Dong-dong, Seongbuk-gu, Seoul, Seongbuk-gu, Seoul, and ○○○ apartment (hereinafter “instant apartment”).

B. On September 16, 2004, the time when the new construction of the instant apartment was completed, the non-party association entered into an entrustment contract with Defendant 1 on the part of 1,328.78 square meters of the 201-dong underground floor, the residents’ sports facilities among the common areas of the instant apartment owners, and 958.90 square meters of the 201-dong underground floor (hereinafter “instant underground 1 and 2-story”), with the entrustment deposit amount of KRW 100 million, monthly user fee of KRW 9 million, and the period of entrustment of construction from May 1, 2005 to April 30, 2012, each of which was designated as the entrusted management and management contract for the sports center (hereinafter “instant entrusted management contract”). The main contents are as follows.

Article 2 (Contribution to Facilities)

1. The time to transfer the entrusted property shall be within the commencement date of the contract period, and the list of the transferred property and the invested parts shall be prepared separately, and two copies shall be signed and sealed, and the non-party union and the defendant 1 shall keep one copy of each contract, and the defendant 1 shall, upon termination of the contract, pay the property in arrears to the non-party union

② Defendant 1 shall, in principle, return to the original state other than the above paragraph (1).

(3) The total amount of facility investment shall be determined as one billion won, and the user fee shall be calculated as one billion won compared to the depreciation costs of 7 years in the amount of one billion won, and the deposit amount shall be determined as nine million won per month.

Article 15 (Grant of Benefits to Residents)

① Granting 20% discount benefits for the use of the instant sports facility: Provided, That this is limited to the occupants of the instant apartment complex.

(2) In order to ensure the health of the residents of apartments by actively utilizing the installation and convenience of an in-depth program for apartment occupants.

Article 16 (Operation and Management)

① Defendant 1 is a sports facility within a complex, so once the occupants of the apartment of this case are the top priority, and in principle, the residents of other areas may use the apartment of this case.

② The Nonparty Union shall allow Defendant 1 to secure a parking space at the time of operating vehicles necessary for its business.

Article 17 (Succession to Contracts)

When the non-party association completes the liquidation after the completion of its business, it shall succeed to the rights and duties of this contract to the council of occupants' representatives.

C. After the completion of the instant apartment on April 20, 2005, the occupancy of the apartment residents began at that time, and the management rules were enacted on June 10, 2005, and the council of occupants' representatives was organized on November 2005, and the housing management operator was selected for the management of the instant apartment by the council of occupants' representatives.

D. From May 2005, Defendant 1 had various facilities and operated a sports center on the 1st and second basements of the instant underground in line with the occupancy of apartment residents. Defendant 2 occupied and used a part of the stores leased from Defendant 1 to operate it. The 1st underground floor was used as a swimming pool, incidental facilities, fitness ground, and Taekwondo ground.

E. On May 29, 2006, Plaintiff (Counterclaim Defendant 1) completed the registration of ownership preservation on the instant apartment on May 29, 2006, and Plaintiff 2 completed the registration of ownership transfer from Nonparty 2 on July 21, 2006 on the instant apartment (Dong number 2 omitted).

F. On the other hand, the part of the apartment of this case, following the occupancy of the non-party association, concluded a long-term consignment management contract on the 1,2, underground floor of this case, which is an exclusive facility for the residents of the occupancy without the consent of the residents of the occupancy, and the non-party association controlled the access of the sports center vehicle in addition to holding a meeting or posting a banner before the above sports center. Accordingly, the defendant 1 urged the non-party association and the council of occupants' representatives to resolve the problem of succession to the entrusted management contract of this case as soon as possible.

G. Defendant 1 did not resolve the issue of succession to the instant consignment management agreement, resulting in difficulties in operating the said sports center, and applied for the conciliation of the usage fees pursuant to the instant consignment management agreement against the non-party cooperative as Seoul Central District Court 2006 money 11865. In the instant case, on September 27, 2006, Defendant 1 and the non-party cooperative filed an application for the conciliation of the amount of KRW 69,300,000,000, monthly payment of the usage fees in arrears, from January 2007 to November 30, 2012, and the period of consignment of the instant consignment management agreement was extended by November 30, 2012.

H. After that, Defendant 1 filed a lawsuit seeking the refund of deposit, etc. of the instant consignment management contract with the Seoul Central District Court 2007Gahap5953, Jan. 14, 2008, Defendant 1 decided to recommend a settlement with the following contents, etc., and the said decision of recommending settlement became final and conclusive around that time.

1. The expiration date of the consignment management contract of this case between Defendant 1 and the non-party cooperative shall be extended by June 30, 2013.

2. Defendant 1 shall pay to the non-party partnership KRW 23.1 million which is in arrears as of December 31, 2007, out of the amount to be paid in installments under the above mediation protocol on September 27, 2006, until February 28, 2008, and the remaining amount shall be paid in accordance with the above mediation protocol.

3. As of December 31, 2007, KRW 71 million, which Defendant 1 delayed, shall be paid to the non-party association in twelve installments from January 31, 2008 to December 31, 2008 by 5,916,66 won as of December 31, 2008.

4. From January 1, 2008 to the delivery of the first and second floors of this case, Defendant 1 shall pay to the non-party partnership the fee of KRW 9 million as of the end of each month, and shall pay all public charges, such as electricity, gas, water supply and drainage, hot water, and heating charges, notified each month by the management office.

5. When Defendant 1 does not pay the amount stated in the above paragraphs 2 through 4 above, he shall pay to the non-party partnership the late payment charge at the rate of 8% per annum.

8. If Defendant 1 was detained for at least seven days due to his/her failure to report a sports facility business prescribed in the Installation and Utilization of Sports Facilities Act, and the instant consignment management contract is terminated, the non-party association shall receive the 1 and 2 stories underground of this case from Defendant 1, and shall, at the same time, receive all facilities, such as interior works, etc. within the said building and movable property, and at the same time, pay to Defendant 1 the remainder after deducting the following amount from the deposit amount of KRW 100 million in the instant consignment management contract and the facility investment cost of Defendant 1: Provided, That if the entrusted management contract is delayed, the overdue charge

:

(a) The amount of one billion won from the 74th month to May 1, 2005 to the delivery of the underground of this case 1/2nd floor and the number of months from the completion date of delivery of the facilities and movables within the above building;

B. The sum of the amounts in arrears when Defendant 1 did not pay the amount stated in paragraphs 2 through 4 and the late payment charge stated in paragraph 5;

(c) Obligations succeeded under Article 30 of the Installation and Utilization of Sports Facilities Act;

9. When Defendant 1 fails to pay more than three times even one of the amounts listed in paragraphs 2 through 4, Defendant 1 waives the above-mentioned interest and the right to claim the return of facility investment expenses, and immediately delivers the 1 and 2th underground of this case to the non-party association, and delivers all the facilities and movables within the above building.

10. The non-party association shall pay to Defendant 1 the remainder after deducting the amount specified in paragraph 8-b. and (c) from the deposit of KRW 100 million, at the same time as the receipt of all the facilities and movable property by Defendant 1 under paragraph 9.

I. Although the non-party association requested that the council of occupants' representatives of the apartment of this case succeed to the management contract of this case several times, the council of occupants' representatives rejected this request, and thereafter the non-party association completed the registration of the completion of liquidation on April 15, 2008 after the registration of dissolution was completed on February 13, 2008. On April 24, 2008, the council of occupants' representatives deposited the contract related to the management contract of this case with the council of occupants' representatives as the principal deposit and the deposit passbook of the community credit cooperatives deposited the user fee until the time as the deposit was made as the water No. 4 in Seoul Central District Court

2. Relevant statutes;

(a) The Housing Act;

Article 2 (Definitions)

9.‘welfare facilities’ means the following common facilities for the well-being of occupants, etc. in a housing complex:

(a) Children's playgrounds, neighborhood living facilities, kindergartens, residents' sports facilities and senior citizen's clubs;

(b) Other common facilities prescribed by Presidential Decree for the well-being of occupants, etc.;

Article 43 (Managing Body, etc.)

(1) A project operator who has constructed multi-family housing prescribed by Presidential Decree (including cases where a facility other than a house and a house are constructed in the same building after obtaining a building permit under Article 11 of the Building Act and incidental facilities and welfare facilities are included, but excluding facilities sold to the general public among welfare facilities; hereinafter the same shall apply) shall directly manage the relevant multi-family housing until a majority of prospective occupants move into the multi-family housing; and where a majority of prospective occupants move into the multi-family housing, he/she

(2) An occupant shall autonomously manage a collective housing falling under paragraph (1) pursuant to paragraph (4), or manage it by entrusting a housing management operator under Article 53 with the management thereof.

(3) Upon receipt of a request under paragraph (1), an occupant shall organize a council of occupants' representatives within three months from the date he/she receives such request, and determine management methods of the relevant collective housing (where a housing management operator selects management methods by entrusting a housing management operator, including the selection of the housing management operator), and notify the project operator thereof, and report to the head of the competent Si

(4) Where the council of occupants' representatives intends to autonomously manage multi-family housing, it shall appoint the head of a management office of multi-family housing as the representative of an autonomous management organization and organize an autonomous management organization equipped with technical human resources and equipment prescribed by Presidential Decree within six months from the date a request is made under paragraph (1): Provided, That where it intends to change the methods of management to autonomous management by the end of the entrusted management where it entrusts a housing management operator under

(5) Where a council of occupants' representatives fails to make a notification under paragraph (3), or no autonomous management organization under paragraph (4) has been organized, a project undertaker shall select a housing management operator. In such cases, the project undertaker shall notify the occupants of such fact.

(6) Where an autonomous management organization under paragraph (4) is organized or a housing management operator under paragraph (5) is selected, a project undertaker shall transfer the management affairs of collective housing to the relevant management entity, and the same shall also apply where the management entity has changed: Provided, That the management period of a management entity under paragraph (5) shall be prescribed

(7) Matters necessary for the following matters shall be prescribed by Presidential Decree:

1. Methods and procedures for notification and request under paragraph (1);

2. Organization and operation of the council of occupants' representatives and matters for resolution under paragraph (3);

3. Affairs of the managing body;

4. The alteration in the management methods;

5. Organization, function, and operation of a multi-family housing management organization (including an autonomous management organization under paragraph (4));

(b) Enforcement Decree of the Housing Act;

Article 54 (Takeover and Transfer of Management Affairs)

(1) When a project undertaker transfers the management duties to an autonomous management organization or a housing management operator pursuant to the main sentence of Article 43 (6) of the Act, he/she shall prepare a takeover and transfer certificate and hand over the following documents. In such cases, the transferee and transferor shall respectively sign and affix their seals on the takeover and transfer certificate in the presence of the representative

1. Design documents, details of equipment, long-term repair plan, and safety management plan;

2. Current status of imposition and collection of management expenses and user fees, and accounting documents related thereto;

3. Current status of accumulation of the long-term repair appropriations under Article 51 of the Act;

4. Details of management expenses deposited; and

5. Management rules, and other matters necessary for the management duties.

(2) The management period of a management body under the proviso of Article 43 (6) of the Act shall be until the autonomous management body is organized, or the housing management operator is selected by occupants, etc.

Article 55 (Duties, etc. of Managing Body)

(1) The managing body shall perform the duties in the following subparagraphs pursuant to the provisions of Article 43 (7) of the Act. In this case, the common areas of collective housing may be used to the extent necessary:

1. Maintenance, repair and safety management of common areas of multi-family housing;

2. Guard, cleaning, disinfection and garbage disposal within the collective housing complex;

3. Collection of the management expenses and fees, and vicarious payment of public imposts;

4. Collection, accumulation and management of long-term repair appropriations;

5. Enforcement of the matters determined by the management rules;

6. Execution of matters resolved by the council of occupants' representatives;

7. Other matters determined by Ordinance of the Ministry of Land, Transport and Maritime Affairs.

C. Enforcement Rules of the Housing Act

Article 25 (Duties of Managing Body)

"Matters prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs" in Article 55 (1) 7 of the Decree means the following matters:

1. Disclosure and publicity of the management affairs of multi-family housing and guidance and enlightenment on the method of using common facilities;

2. Prevention of unauthorized occupation of land, incidental facilities and welfare facilities within the multi-family housing complex which are provided for the joint use of occupants, etc., and measures against the violation thereof;

3. Countermeasures against safety accidents, theft accidents, etc. in a multi-family housing complex;

3. Determination as to the claim on the principal lawsuit

A. Determination on the cause of the claim

In the aggregate building, where a third party illegally occupies the site or attached facilities of the building that belongs to the section for common use or the co-ownership of the sectional owner, the legal relation that the third party unlawfully occupied the site or attached facilities is not the legal relation that belongs to the sectional owner, but the right of co-ownership such as the section for common use, etc., and such legal relation is based on the right of co-ownership such as common use, etc., and thus, the sectional owner may file the lawsuit first or all of them (see Supreme Court Decision 2003Da17774,

In this case, the plaintiffs are co-owners of the apartment of this case, and the defendants occupied the 1 and 2 stories underground of this case, which are common areas. Thus, the defendants are obligated to deliver the 1 and 2 stories underground of this case to the plaintiffs, barring any special circumstances.

B. Determination of the defendants' assertion

1) The allegations and issues of the parties

The Defendants asserted that the instant consignment management contract is naturally succeeded to the managing body of the instant apartment pursuant to Article 43(6) of the Housing Act, based on the instant consignment management contract entered into with the non-party association, and that the instant consignment management contract still has a legitimate right of possession. Accordingly, the Plaintiffs merely claim that Article 43(6) of the Housing Act refers to the transfer of management affairs by transferring various documents related to the management affairs, and thus, the contractual relationship entered into with the third party cannot be deemed to be succeeded by the business entity. As long as the council of occupants’ representatives did not succeed to the rights and obligations under the instant consignment management contract, the Defendants did not have the right of lawful possession and use of the instant 1 and 2 floors. Ultimately, the validity of the instant consignment management contract entered into with the non-party association and the management body that acquired the management affairs after that of the said case or the sectional owners, such as the Plaintiffs, are examined as to this part of this issue.

2) Determination

A) According to Article 43(1) and (6) of the Housing Act, the business entity who constructs the apartment shall directly manage the apartment until the majority of the prearranged occupants move into the apartment, and if the council of occupants' representatives is organized, it shall transfer the management duties to the autonomous management organization or entrusted management authority under the conditions as determined by the council of occupants' representatives. The purport and contents of Article 54 of the Enforcement Decree of the Housing Act and Article 25 of the Enforcement Rule of the Housing Act as mentioned above, there is a need to manage the management duties of the apartment in a timely manner even before the council of occupants' representatives is formed. Article 43(6) of the Housing Act provides that the business entity shall transfer the management duties of the apartment to the management entity, including the autonomous management organization or the housing management operator, who has entered into an agreement with the business entity to transfer all kinds of documents related to the management duties of the apartment house to the management entity, which would harm the management affairs of the apartment house, and the purport of Article 54(1) of the Enforcement Decree of the Housing Act provides that the management entity shall transfer all legal provisions related to the management affairs of the apartment and other affairs to the business entity.

In the instant case, the fact that the non-party association entered into the instant consignment management contract with Defendant 1 with respect to the management of the 1st and the 2nd underground of the instant apartment before the council of occupants' representatives is constituted is as seen earlier. Therefore, the council of occupants' representatives of the instant apartment is obligated to succeed to the rights and obligations of the non-party association under the instant consignment management contract, barring any special circumstance

In addition, the following circumstances acknowledged by the above facts and the evidence as follows: ① Defendant 1 entered into the entrusted management contract of this case with the non-party association and lawfully occupied the apartment of this case; the entrusted management contract of this case is deemed a legal obligation that the council of occupants' representatives shall succeed to the rights and obligations pursuant to the management contract for common areas; ② Article 17(2) of the sales contract for the apartment of this case provides that "the apartment of this case includes a swimming pool area in the B complex (201 to 228 units) other public areas of the household." The buyers including the plaintiffs and their successors are presumed to entrust the management affairs for the swimming pool portion at least to the non-party association. ③ The plaintiffs are deemed to have entrusted the management affairs for the apartment of this case including the 1 and 2 floors above the council of occupants' representatives to the non-party association with other occupants, and thus, the rights and obligations pursuant to the entrusted management contract of this case should have pride. ④ In light of the existence of the causes attributable to the failure of the entrusted management contract of this case between the parties.

Therefore, the defendants have a legitimate possessory right under the entrusted management contract of this case. Thus, this part of the defendants' assertion is with merit.

B) As to this, the Plaintiffs asserted that even if the legal effect of the instant consignment management contract was succeeded to the occupant representative meeting pursuant to Article 43 of the Housing Act, the validity of the instant consignment management contract was terminated due to Defendant 1’s failure to perform the obligations under the instant consignment management contract and the instant consignment recommendation order, such as failing to pay monthly rent and electricity fee amounting to KRW 470,000,000,000,000,000,000,000,000,000 won, the Defendants merely

In accordance with the management agreement of this case and the above settlement recommendation decision, Defendant 1 paid monthly user fee of KRW 9 million to the non-party cooperative, electricity fee, and other public charges. The above settlement recommendation decision contains the following facts: “When Defendant 1 fails to pay at least three times even one of the amounts listed in paragraphs 2 through 4, Defendant 1 gives up the above-mentioned interest and the right to claim the return of facility investment expenses, and immediately delivers all the underground 1, 2, and 15, 18, and 20 of this case to the non-party cooperative.” However, the above facts and the statements of the above recognition and the above evidence are insufficient to acknowledge that the validity of the contract was terminated as it did not unilaterally perform the obligations stipulated in the management agreement of this case or the above settlement recommendation, and there is no other evidence to support them otherwise, so long as the existence or absence of any cause attributable to the failure of the management contract of this case between the parties to the contract, and whether the contract of this case has been terminated without permission of the plaintiffs, it is not justified.

3. Judgment on a counterclaim

A. Defendant 1’s assertion

Defendant 1, based on the facility cost claim of KRW 1 billion for the instant underground floors or the claim to return deposit of KRW 100 million for the instant underground floors, was in possession of the instant underground floors and exercised the right of retention. However, Defendant 1 was deprived of Defendant 1’s possession by based on the declaration of provisional execution of the judgment of the first instance court against the Plaintiffs, which was based on the declaration of provisional execution of the judgment of the first instance court against the Plaintiffs, and thus, the Plaintiffs were obliged to deliver the instant underground floors 1 and 2 pursuant to Article 204 of the Civil Act to Defendant 1.

B. Determination

On October 5, 201, the court of first instance sentenced the Plaintiffs to a provisional execution order stating that “Defendant 1 and Defendant 2 shall deliver the instant 1 and 2 stories to the Plaintiffs.” Accordingly, the fact that the Plaintiffs, on November 29, 2011, rendered a clear enforcement with respect to the instant 1 and 2 stories, does not conflict between the parties, but merely because the Plaintiffs, upon the judgment of the court of first instance, executed a clear enforcement based on the provisional execution order of the court of first instance, it cannot be deemed as a deprivation of illegal possession. Thus, Defendant 1’s assertion is without merit without any need to further examine.

4. Conclusion

Therefore, the plaintiffs' claims against the plaintiff are dismissed due to the lack of reason. The judgment of the court of first instance is unfair in conclusion, and all of the plaintiffs' claims against the plaintiff are dismissed. The defendant 1's claims against the defendant 1 raised in the court of first instance are dismissed due to the lack of reason. On the other hand, as the judgment of the court of first instance was revoked in the court of first instance, the provisional execution order of the court of first instance is invalidated due to the judgment of the court of first instance, and the plaintiff is obligated to deliver each of the above 1 and 2 stories underground of this case to the defendant 1 due to the return of provisional payment, so the application for the return of provisional payment of this case

[Attachment Omission of List of Real Estate]

Judges Kim Sang-sung (Presiding Justice)

1) The text of the law provides for an autonomous management organization or a housing management operator, but the autonomous management organization is merely an internal management organization organized by the council of occupants' representatives to manage the collective housing on its own, and the housing management operator is merely entrusted with the management of the collective housing based on the contractual relationship by the council of occupants' representatives. Thus, the subject who actually takes over the management of the collective housing

2) On August 17, 2012, the council of occupants’ representatives filed a lawsuit against Defendant 1 for requesting the delivery of a building by Seoul Central District Court 2012 Gohap52658.