(영문) 대법원 2015.4.23.선고 2014다89386 판결

The part of the judgment of the court below against the plaintiff shall be reversed, and that part of the case shall be remanded to the Panel Division of the District Court.

Reasons

The grounds of appeal are examined.

1. “The date when the injured party becomes aware of the damage and the perpetrator” under Article 766(1) of the Civil Act, which serves as the starting point of the short-term extinctive prescription of a claim for damages due to a tort, means the time when the injured party, etc. reasonably and specifically, knows the facts requiring the tort, such as the occurrence of the damage, the existence of the illegal harmful act, and the proximate causal relation between the occurrence of the harmful act and the damage. Whether the injured party, etc. deemed to have actually and specifically recognized the facts requiring the tort at any time should be reasonably acknowledged by taking into account various objective circumstances in individual cases and taking into account the situation in which the claim for damages is practically possible (see, e.g., Supreme Court Decisions 200Da2249, Jun. 28, 2002; 201Da54686, Nov. 10, 2011)

2. According to the reasoning of the judgment below, the court below asserted that the council of occupants' representatives (hereinafter referred to as the "former council of occupants' representatives") with residents, including D, as the chairperson of the defendant around August 2009, caused property losses, etc. to the occupants of the apartment of this case in relation to the 10-year defect repair disposal, and decided to dismiss each Dong, including the defendant, who was the chairperson of the old council of occupants' representatives at the time of holding a general meeting of residents on September 4, 2009, and to constitute a new council of occupants' representatives. Accordingly, on September 21, 2009, the new council of occupants' representatives was composed of the plaintiff on September 21, 2009, ② the plaintiff terminated the entrustment management contract concluded with the 3-year comprehensive multi-unit housing management company (hereinafter referred to as "multi-unit housing"), and newly concluded the entrustment management contract with the plaintiff's comprehensive apartment management company (hereinafter referred to as the "Korean comprehensive apartment management company"), and acknowledged the above comprehensive repair appropriations of this case as the plaintiff's's's.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① Even after being dismissed from office as the president and the representative of the former council of occupants’ representatives, the Defendant used the seal of the president.

② Although the consignment management contract concluded with the Plaintiff was terminated and the controlled entity was changed to the comprehensive management, the apartment management of this case was not transferred to the Plaintiff and the Plaintiff.

3) The Plaintiff, who failed to receive the acquisition and transfer account of the instant apartment management business from the Defendant and the Taelim Housing, failed to use the account for entering the management expenses of the instant apartment on December 8, 2009, applied for the payment of the deposit account of each of the management expenses to the banks where the deposit account of the management expenses of the instant apartment was opened, but the Defendant and Taelim Housing Management Manager, using the seal of the chairman of the council of occupants’ representatives and the director of the management office of Taelim Housing from December 18, 2009 to February 5, 2010, withdrawn KRW 21,962,570 in total from the deposit account of the management expenses of each of 15 times from the deposit account of the management expenses of the instant apartment.

④ On November 1, 2011, the Plaintiff was issued with a unique number of the Plaintiff’s representative corrected by J from the director of the tax office of Namyang-ju to J, and on November 2, 2011, the Plaintiff filed an application for a statement of accounts for entering and withdrawing management expenses attached with a unique number to the above banks, and received each statement of accounts for entering and withdrawing management expenses from the above banks.

B. Examining the above circumstances in light of the legal principles as seen earlier, it is difficult to readily conclude that the Plaintiff, around December 4, 2009, knew of the requisite facts of tort, such as the embezzlement of the Defendant and Taelim Housing due to the use outside the use of the long-term repair appropriations and the occurrence of damages therefrom, etc. Rather, the Plaintiff is highly likely to have become aware of the damages and the perpetrator due to the use of the long-term repair reserve fund for the purpose other than its original purpose on November 2, 201, on or around December 4, 2011, on the grounds that the Plaintiff terminated the consignment management contract that was concluded with Taelim Housing that managed the instant apartment, entered into a comprehensive management and new consignment management contract, and the comprehensive management began to manage the instant apartment from that time.

C. Nevertheless, the lower court determined that the Plaintiff’s claim for damages equivalent to the long-term repair appropriations against the Defendant has expired by prescription solely based on its stated reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the starting point of calculating the short-term extinctive prescription period of a claim for damages due to a tort

4. In a case where a plaintiff filed an appeal against a judgment of the appellate court that dismissed multiple selectively joined claims, the court of final appeal shall reverse the judgment of the court below in its entirety, if it recognizes that the appeal against some of the selective claims is well-grounded (see, e.g., Supreme Court en banc Decision 2010Da95390, Jan. 19, 2012). Therefore, without proceeding to decide on the remaining grounds of final appeal, the part against the plaintiff who dismissed all the terms of the plaintiff selectively joined claims of the judgment of the court below against which the plaintiff was dismissed shall be reversed, and this part of the case shall be remanded to the court below for a new