2013daba27391 Return of unjust enrichment

A person shall be appointed.

B Council of Representatives

June 27, 2014

July 18, 2014

1. The defendant shall pay to the plaintiff 1, 193, 389 won with 5% interest per annum from July 20, 2013 to July 18, 2014, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 95% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

1. From June 22, 2013 to June 22, 2013, whether the Defendant served the Plaintiff with a copy of the complaint in KRW 22,537,828 and its related thereto.

5% per annum and 20% per annum from the following day to the date of full payment.

H. D. Payment

2. (Preliminaryly Claim 1) The defendant 22,060,000 won and the plaintiff on December 1, 2010

5% per annum until the date of service of a copy of the request for amendment of the purport and cause of the claim, and 5% from the next day.

Until the date of payment, the amount of money calculated at each rate of 20% per annum shall be paid.

1. Basic facts

A. The defendant is a representative meeting of occupants, who is composed of 8 underground floors and 40 above ground-ground complexes [the 1st underground floors, the 2nd underground floors, and the 8th underground floors from the 3rd underground to the 8th underground floors, and the 9th underground floors from the 2nd underground and the 9th underground floors, such as a parking lot, a hotel, etc., a convenience facility for residents, such as a helicopter, an officetel (101 Dong), and an apartment (102 Dong Dong) from the 10th to the 40th above ground; hereinafter referred to as "the complex of this case") under divided ownership of apartment, officetel, and a commercial building, and a management office of "living culture support room" is operated by the defendant (hereinafter referred to as the "management company of this case").

B. On October 2009, the Plaintiff leased the instant complex No. 201 (hereinafter “instant store”) from L Construction Co., Ltd., a contractor and a construction executor of the instant complex, and the Plaintiff leased the instant complex No. 201 (hereinafter “instant store”).

19. On 29. 29. The Plaintiff and L Construction Co., Ltd. agreed that 00 U.S. would succeed to the lessor’s status of the lease agreement concluded between the Plaintiff and L Construction Co., Ltd.

C. The instant complex has a central heating and cooling facility, but no measuring instrument is installed to measure the amount of air-conditioning and heating usage by each household or store, and the instant management company imposes and collects management fees from the Defendant after being entrusted with the management of the instant complex from the Defendant to the occupants of the instant complex every month. In the case of air-conditioning and heating costs, the instant complex is part of the entire complex for the instant complex.

An amount converted at the ratio corresponding to the whole area of each household of each tenant was imposed and collected from individual occupants among the expenses incurred in the operation of an HU heating and cooling facility.

D. On December 2010, the Plaintiff cut off the central heating and cooling supply facilities connected to the instant store, installed facilities for self-conditioning and heating, and operated self-conditioning and heating without receiving central heating and cooling supply.

E. In relation to this, even after the Plaintiff operated its own heating and cooling as above, the instant management company notified the Plaintiff every month of the payment of management expenses, including the heating expenses for each household, due to the supply of the central heating and cooling, (in addition, the parking lot operation expenses were added from November 2012). However, the Plaintiff paid only the amount excluding the heating and cooling expenses for each household as management expenses every month from the management expenses in December 2010 to the management expenses every month from April 2013.

F. Accordingly, on June 7, 2013, the instant management company: (a) based on the premise that the Plaintiff was fully appropriated for management expenses until November 2012 (excluding late 306,910 won from November 2012), the amount paid by the Plaintiff as management expenses until April 2013 (excluding late 306,910 won) due to the unpaid heating and cooling expenses paid by the Plaintiff for each household and the late payment charges therefor; (b) provided that the management office notified the Plaintiff of the purport that the Plaintiff would suspend the supply of electricity, heating and cooling water from 00 to 4 April 2013, 2013, which is equivalent to the management expenses from December 2012 to June 10, 2013.

G. On April 27, 2013, the Plaintiff entered into a transfer agreement with Kim 00 to transfer the instant store’s facilities and rights to KRW 130,00,000, and agreed to pay to Kim 00 all the management expenses that the management office imposed on the Plaintiff.

H. On June 20, 2013, the Plaintiff sent a written notification to the Defendant and the instant management company through the legal advisory lawyer to the effect that the Plaintiff did not have any obligation to pay the heating and cooling expenses, etc. for each household, and that “it does not recognize the obligation to pay the management expenses even if the Plaintiff has not been inevitably paid the management expenses for the smooth transfer of business, and shall have the obligation to pay the management expenses on the premise that it would be settled through the legal lawsuit in the future.” From May 1, 2013 to June 21, 2013, the Plaintiff received 7,116,080 won from the instant management company as the management expenses from May 1, 2013 to June 21, 2013 (including 823,970 won for each household, 281, 328 won for parking lot operation expenses, 20, 114, 810 won, 110, 310, 317, 281.28

The business was closed at the store of this case.

I. Regarding the above subsection (d) and (f) above, the entire details requesting the instant management company to pay the unpaid management fees of the Plaintiff, and among them, the details of heating and cooling expenses and parking lot operating expenses imposed by the instant management company on the Plaintiff are as follows:

* As for May 2013, the details of the settlement of management expenses from May 1, 2013 to June 21, 2013, 2013 【Grounds for Recognition: the fact that no dispute exists, Gap, 2, 6, 11, 12, 17 to 21, 15-1, 2, 3, 16, 16, 24 to 27-1, 2, Eul, 1, 14, 15, 16, and 16-1, 2, and 1,2, Eul, 1, 14, 15, and 16, the fact-finding inquiry and video with respect to L Construction Co., Ltd., and the purport of the whole oral proceedings】

2. The plaintiff's assertion

A. Claim for return of unjust enrichment

The plaintiff is imposed only on the ground that the heating and cooling expenses for each household constitute management expenses for the exclusive part, and they are actually used and used. As the plaintiff sought prior understanding on the operation of the central air-conditioning and heating facilities, the plaintiff does not have a duty to pay the air-conditioning and heating expenses for each household according to the central air-conditioning and heating supply. The expenses for parking lots do not have a duty to pay them because there is no grounds for imposition, and furthermore, it is unclear in the basis for calculation. Thus, the plaintiff paid the amount claimed by the defendant for the smooth transfer of the store of this case to Kim 00 on the premise that the plaintiff did not dispute this, and the defendant paid the unpaid amount to the defendant to the plaintiff for the smooth transfer of the store of this case. Thus, the defendant's appropriation of the unpaid management expenses for the management expenses for each household of 21,432,530 won and the unpaid heating and cooling expenses for 823,970 won and 281,328 won for each household of 2,537,828 won.

B. Claim for damages

In response to the plaintiff's claim for return of unjust enrichment and selectively, although the management company of this case had a duty to preserve and manage the common areas of the store of this case in a state suitable for the use and profit-making by the sectional owners, damage was caused by the flow of air conditioners from the outside of the store of this case, and the plaintiff had already requested the management company of this case to take measures to identify the cause and resolve the situation before installing its own heating and cooling facilities around November 201, but the management company of this case did not take any measures. After the plaintiff installed its own heating and cooling facilities, the management company of this case requested repair from L Construction Co., Ltd., which is late around September 6, 201, with the possibility of spreading the air conditioners from the outside of the store of this case to 100, the management company of this case 60, which caused damages to the plaintiff as part of the 160, which caused damages to 10,000,000 won to 60,000,000 won.

3. Determination as to claim for damages

A. Determination as to the assertion on the employer’s liability under the main sentence of Article 756(1) of the Civil Act (1) as to the assertion on the employer’s liability (1) as to the tort committed by an employee under the main sentence of Article 756(1) of the Civil Act, the liability to compensate for the damages inflicted upon an employee to a third party by using another person. As such, the use relationship between the employer and the tortfeasor, i.e., the employer’s actual control and supervision (Supreme Court Decision 199Da

12. In the case of delegation, in the case of delegation, only when there is a direct and supervisory relationship between the mandator and the mandatary, the mandator is liable to compensate for any damage inflicted on a third party due to the mandatary’s illegal act (see Supreme Court Decision 96Da25500 delivered on April 28, 1998).

(2) According to the facts that there is no dispute between the parties, the entry in Eul evidence No. 1, and the purport of the entire pleadings, the defendant, under the management rules, determines the same matters as stated in the following written boxes, and the defendant, to entrust the management of the complex to the management company of this case by entrusting the management company of this case pursuant to the above management rules, although it is recognized that the management company of this case, which is directly responsible for the preservation, management, and modification of the common area of the complex of this case pursuant to Article 17 (1) 1 of the above management rules, has no evidence to recognize that the management company of this case, which is directly responsible for the preservation, management, and modification of the common area of the complex of this case, is actually under the direction and supervision

Article 4 (Definition of Terms) The definitions of terms used in this Code are as follows. (6) The term "management entity" means a person who manages the section for common use: (a) The manager is appointed at the management body meeting; (b) In the case of entrusted management, a person holding a sectional ownership shall establish a council of occupants' representatives within three months, determine management methods (including the selection of a housing management entity, if it is decided to manage autonomously) and notify it to L Construction (the owner) and report it to the Mapo-gu head (the owner), if the council of occupants' representatives decides to manage autonomously. (ii) If the council of occupants' representatives decides to manage autonomously, the housing management entity shall appoint the president as the representative of the autonomous management body. (iii) In the case of a decision to manage the section for common use, the manager shall be the manager who is the management body. (iv) In the case of entrusted management, the person holding a sectional ownership shall have the authority and duty to perform the following acts and the duty to perform the following acts, and (ii) in respect of the possessor and the manager's duty to perform the following acts:

Liability for damages caused by defects in the installation and preservation of a structure by a possessor of a structure under the main sentence of Article 758(1) of the Civil Act is intended to make the possessor of the structure compensate for damages suffered by a third party due to the failure to meet the safety ordinarily required for the use of the structure (see Supreme Court Decision 2003Da24499, Jan. 14, 2005). Since there is no evidence to support that the damages alleged by the Plaintiff were caused by the lack of safety of the section for common use of the store of this case, the Plaintiff’s assertion about the liability for damages by the possessor of the structure of this case is without merit without any further need.

4. Determination as to the claim for return of unjust enrichment

A. Determination (1) on the payment of heating and cooling expenses for each household under the central heating and cooling shall be made according to the nature of each item of management expenses for the management of an aggregate building, i.e., management expenses for a common area. In this case, management expenses for a common area shall be spent not only for the direct maintenance and management of the common area of an aggregate building, but also for the expenses for the entire maintenance and management of an aggregate building including a section for exclusive use but also for the maintenance and management of an apartment, etc. for the common interest of the whole occupants. Thus, it is reasonable to view that it is included in the management expenses for a common area if the occupants are not clearly divided into individual, actual, specific expenses for use and profit-making expenses (see Supreme Court Decision 2004Da3598, 3604, Jun. 29, 2006).

(3) The purport of the aforementioned provisions and the Enforcement Decree of the Housing Act appears to be as follows: (a) in the event a measuring instrument measuring the amount of heating to multi-family housing which is an aggregate building has not been installed, it is necessary to uniformly maintain and manage multi-family housing for the common interest of all occupants among the expenses paid for the maintenance and management of the aggregate building which is an aggregate building, including the section for exclusive use, and thus, it is necessary to uniformly disburse such expenses, under the premise that occupants do not clearly distinguish the expenses individually, real, and specifically used and profit-making, the expenses for cleaning, cleaning, expenses for disinfection, elevator maintenance, intelligent home network equipment maintenance, maintenance expenses, expenses for water supply, entrusted management fees, etc., and thus, it is difficult to impose heating expenses according to the same standard for imposition as other management expenses for each of the stores under the premise that the Plaintiff is not obligated to pay the amount of heating and cooling expenses for each of the above units of multi-family housing regardless of the number of floors used as a house, and thus, it is not reasonable to distinguish the amount of heating and cooling expenses for each of each of this case.

B. The judgment on the payment of parking lot operating expenses (1) appears not to have a provision that the management entity, etc. of the relevant laws, such as the Housing Act, may collect parking lot operating expenses from the occupants, etc. of multi-family housing as management expenses. On the other hand, if the whole purport of the pleadings is added to the statement in subparagraph 1 of subparagraph B, the defendant is recognized as having either prescribed in the management rules as to whether the operating expenses of the instant complex should be collected from the occupants of the instant complex, or did not pass a resolution at the management body meeting comprised of all sectional owners, and thus, it is recognized that the management company of this case collected the parking lot operating expenses from the plaintiff by collecting the parking lot operating expenses from the plaintiff without any legal grounds, so the defendant is obligated to return them to the plaintiff as unjust enrichment.

(2) Furthermore, with respect to the amount of operating expenses related to the parking lot to be returned by the Defendant to the Plaintiff via the instant management company, the Health Center and the instant management company on November 2012 to the Plaintiff.

1. From June 21, 2013 to June 21, 2013, the Plaintiff imposed a total of KRW 1,146,868 as stated in the table 1, and the Plaintiff paid KRW 28,548,610 as management expenses to the instant management company on June 21, 2013, as mentioned in the evidence No. 1 above. If the purport of the entire pleadings is added to the occupant who delayed payment of management expenses under Article 61 and Table No. 4 of the Management Rules, the Defendant is not obliged to impose additional charges at the rate of 10% from the date following the judgment No. 200 to June 21, 2013 to the date of 2000,0000,000 won, calculated based on the rate of 20% from the day following the judgment No. 30,548,610 to the date of 20,000 won, which is the first day after the judgment below.

* On August 2, 2013, the Defendant held a council of occupants' representatives on August 2, 2013 and resolved to the effect that the management company of this case approves all the management expenses imposed on the Plaintiff, who is the occupant of the store of this case. In other words, the Defendant held a council of occupants' representatives on January 20, 2014 and passed a resolution to the effect that the management company of this case imposed on the tenant of this case on the tenant of the commercial building of this case, and confirmed that the management company of this case imposed the operating expenses on the tenant of the commercial building of this case, it does not constitute unjust enrichment. However, the Defendant argued to the purport that collecting the operating expenses of the management company of this case through the management company of this case does not constitute unjust enrichment, or the Defendant held a council of occupants' representatives ex post by holding a council of occupants' representatives without a prior resolution by the management body that it was justified to impose the operating expenses of the parking lot on the Plaintiff. Thus, the above dispute of the Defendant is without merit.

(4) In addition, the defendant's payment of operating expenses for a parking lot would have been made with knowledge that the plaintiff did not have an obligation to pay it, which constitutes a non-debt payment under Article 742 of the Civil Code and cannot be claimed for the return thereof. Thus, it is improper for the debtor to avoid claiming the return in case where the debtor expresses his intention to dispute the existence and scope of the creditor and the debtor's claim for the return of the amount in accordance with the debtor's assertion. Thus, it is improper

In the event that the creditor has reserved an objection against the creditor and the creditor has repaid the debt pursuant to the assertion, the provision on repayment of the non-debt under Article 742 of the Civil Act is not applicable, and thus the creditor can claim the return of the debt. However, the defendant's defense that the plaintiff and the management company of this case reserved an objection against the non-performance of the management expenses claimed by the defendant and paid the management expenses in arrears by the defendant, including the parking lot operating expenses, is without merit.

5. Conclusion

Therefore, the plaintiff's claim is justified only within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judge Go-man