Plaintiff (Attorney Lee Jae-won, Counsel for the plaintiff-appellant)

Hyundai Apartment Council of Residents (Attorney Go-ro et al., Counsel for the plaintiff-appellant)

Gwangju District Court Decision 2010Gahap59, 2010Gahap5146 decided November 5, 2010

September 2, 2011

1.The judgment of the first instance shall be modified as follows:

A. The Defendant shall not interfere with the entry, passage, and parking of the vehicles used by the Plaintiff and the Plaintiff’s employees in the parking lot in the modern apartment complex located in Gwangju Seo-gu ( Address 1 omitted) (hereinafter “Supreme Court judgment”) in accordance with the criteria indicated in the attached Form.

B. The defendant shall pay to the plaintiff 1,00,000 won with 5% interest per annum from June 10, 2009 to September 23, 201, and 20% interest per annum from the next day to the day of complete payment.

C. The plaintiff's remaining claims are dismissed.

2. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder 60% is borne by the Defendant, respectively.

3. The above paragraph 1 (a) and (b) may be provisionally executed.

1. Purport of claim

A. The Defendant shall not commit any act that interferes with the entry, passage, and parking of the vehicles owned by the Plaintiff and the Plaintiff’s employees for business activities in the modern apartment complex located in the Seo-gu, Seo-gu, Gwangju ( Address 1 omitted).

B. The defendant shall pay to the plaintiff 10,000,000 won with 20% interest per annum from the day following the day of delivery of the complaint in the Gwangju District Court 2010Gahap5146 damages claim to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

The reasons for this part are as follows: (a) under the second part of the judgment of the court of first instance, the term “as a sectional owner” shall be read as “as a sectional owner”; and (b) the Defendant shall refer to “the Plaintiff’s ownership” of the third 11, as “the Defendant shall own the instant commercial building occupants, including the Plaintiff, etc. whose parking space in the instant apartment complex is serious; and (c) except for the addition of “B evidence No. 26 video” in the part to which the judgment of the court of first instance is based, it shall be cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the claim for exclusion of disturbance

A. The plaintiff's assertion

After the decision of provisional disposition of Gwangju District Court (2009Kahap516), the Defendant issued only one parking studs for the vehicles designated by the Nonparty, and the Plaintiff’s employees and occupancy assistants violated the Plaintiff’s right to use the site by controlling access, passage, and parking for other vehicles used by the Plaintiff and the Plaintiff’s employees for business purposes. Therefore, the Defendant is obligated not to perform any act that obstructs entry, passage, and parking of vehicles for business activities owned by the Plaintiff in the instant parking lot.

B. The Plaintiff’s right to use the site

In a case where the sectional owners of one building co-ownership the site of the building, each sectional owner has a legitimate right to use the whole site of the building according to the purpose of use, regardless of the share of co-ownership in the site, unless there are special circumstances such as the existence of separate regulations, and such a legal principle applies likewise to a case where the sectional owners of several buildings constructed on one parcel of land co-ownership of the land (see Supreme Court Decision 93Da60144, Mar. 14, 1995).

With respect to this case, each apartment building of this case and each of the sectional buildings of this case constructed on the site of this case are registered as a site ownership of a part of the co-ownership of the entire site of this case. Thus, the plaintiff has the right to use the site of this case as a sectional owner of the commercial building of this case.

C. Determination as to whether the right to use site was infringed

According to the above facts, since the defendant controls parking of the remaining vehicles owned by the plaintiff except for one vehicle designated by the non-party, it is somewhat limited to the plaintiff to freely use the parking lot of this case. Thus, it is considered whether the right to use the site has been infringed beyond the plaintiff's tolerance limit.

Whether an apartment complex management organization's act of controlling the access to the apartment complex of an external vehicle in the apartment complex constitutes an infringement that interferes with the right of sectional owners of the commercial building in the apartment complex, shall be determined in accordance with the ordinary social norms, taking into account all the circumstances, such as the location and use relationship of the commercial building and its appurtenant parking lots in the apartment complex, methods of controlling access to the apartment complex, geographical conditions in the apartment complex and its adjacent commercial building, understanding of the occupants of the apartment complex and the commercial building, and other circumstances (see Supreme Court Decision 2009Da4971, Dec. 10, 2009).

As to the instant case, the following circumstances are acknowledged by adding the purpose of the entire pleading to the images of No. 4, evidence and No. 35, No. 11, No. 32, No. 35-2, and No. 5, the Defendant is responsible for managing the instant parking lot, which is a welfare facility, as the managing body of the instant apartment under the Housing Act. Based on the above management responsibility, the Defendant’s establishment of the rules on parking lot operation and control of parking lot of the instant parking lot under certain standards can be more beneficial to the Plaintiff as well as the occupant of the commercial building, such as the Plaintiff, at the time of the instant apartment building’s parking lot operation. The Plaintiff, as well as the Plaintiff, can not claim for priority to the right to use the site until it infringes on the tenant’s right to use the site. According to the above regulations on the management of the instant apartment lot, it is more likely that the Defendant’s temporary parking or temporary parking of the instant parking lot can be restricted than the maximum parking distance of the instant apartment lot.

However, in light of the aforementioned circumstances, since the Plaintiff’s right to use the site can not be freely exercised even if the Plaintiff had the right to use the site, it is reasonable to view that the two parking spaces designated based on the Plaintiff’s right to use the instant parking lot based on the Plaintiff’s right to use the site (the use of the instant parking lot based on the Plaintiff’s right to use the site is on the basis of the passenger car and the passenger car (in the case of a single cargo vehicle, only if it is possible to park in a single parking area less than 2.5 tons, it shall be treated equally as the passenger car and the passenger car) are issued, and the remaining vehicles shall be limited

3. Determination as to claim for damages

The reasons for this part are as stated in the corresponding part of the judgment of the court of first instance, except that the defendant added " beyond the limit of tolerance of the plaintiff" to "the 7th 12th 12th son of the judgment of the court of first instance," and "the 2,000,000 won" to "the 1,00,000 won" of the same 19th son, and this part is the same as stated in the corresponding part of the judgment of the court of first instance. Thus, this part is

4. Judgment on the defendant's assertion

A. Whether the Defendant’s management rules and regulations on the operation of parking lots apply directly to the Plaintiff

Since the defendant, the council of occupants' representatives of the apartment complex of this case, the amended management rules based on the Housing Act, the Enforcement Decree of the Housing Act, and the revised management rules based thereon, stipulated that the defendant, the council of occupants' representatives of the apartment complex of this case, can autonomously determine matters concerning the management of the apartment complex of this case, the co-owners of the commercial building of this case, the welfare facilities of the apartment complex of this case, are obligated to observe the management rules and regulations on the operation of the parking lot set by the defendant, and therefore,

However, in full view of the purport of the argument in the above evidence, the defendant is able to recognize the fact that the apartment building of this case and the building of this case consist only of representatives of each building of this case among the apartment buildings of this case and the building of this case, the management rules and regulations on the operation of parking lots have been enacted and amended by agreement only among the occupants of the apartment of this case, and the management rules limit the apartment of this case and the apartment of this case to the jointly owned incidental facilities, welfare facilities, and their site and accessories (Articles 2, 4, 1, 3, subparagraph 2 of Article 10 of the above regulations), and the management rules limit the criminals of the management rules to the occupants and users of the apartment of this case (Articles 1 and 9 of the above regulations). In light of the above facts of recognition, it cannot be deemed that the owners of this case are subject to the management rules or regulations on the operation of parking lots of this case or bear the duty to comply with them, and there is no other evidence to acknowledge that the plaintiff had been obligated to comply with the management rules and regulations on parking lots.

B. Whether the defendant's decision on the management matters of the apartment management authority is binding on the plaintiff

The defendant may autonomously determine matters concerning the management of the apartment complex of this case in accordance with the Enforcement Decree of the Housing Act and the Housing Act, and the plaintiff is obligated to comply with the above decision, and the defendant asserts that it is justifiable to restrict the entry, passage and parking of the vehicle owned by the plaintiff in this case according to the above decision because the council of occupants' representatives, including the plaintiff, passed a resolution prohibiting the use of the parking lot of this case at the council of occupants' representatives on April 24, 2009.

On April 24, 2009, the defendant decided to prohibit the residents of the instant commercial building including the plaintiff from using the instant parking lot at the council of occupants' representatives. However, even if the defendant made the above resolution, barring special circumstances such as the plaintiff's approval, such resolution is null and void as it goes against the purport of Article 11 of the Act on the Ownership and Management of Aggregate Buildings and Article 13 of the same Act stipulating the unity of the section for exclusive use and the section for common use, which allows the sectional owners to use the section for common use according to the purpose, unless there are special circumstances such as the plaintiff approved such resolution. Thus, the defendant's assertion is without merit.

C. Whether it is possible to restrict the use of the instant parking lot on the ground of the Plaintiff’s nonperformance of the duty to pay management expenses

The defendant asserts that the plaintiff should bear the construction cost of expanding the parking lot in this case and the management cost of the septic tank jointly used.

Even if the Plaintiff should bear the cost of expanding the instant parking lot and the management cost of the septic tank jointly used in response to the use of the instant parking lot, it is difficult to view that the Plaintiff’s obligation to bear such cost is a condition for the use of the instant parking lot, and therefore, the Defendant cannot limit the use of the Plaintiff’s parking lot on the ground of the existence of such obligation, as it is not reasonable.

D. Whether the use of a parking lot without any restriction by the Plaintiff is against the principle of equity

The Defendant asserts that the number of vehicles that can be parked in the instant parking lot per household is 0.8, and that allowing the Plaintiff to park without any restriction on the instant parking lot is contrary to the principle of equity.

The plaintiff's right to use the site can not be exercised freely, and the use of the parking lot of this case based on the plaintiff's right to use the site is based on the plaintiff's right to use the parking lot of this case (the use of the parking lot of this case is not more than 2.5 tons in the case of a single cargo vehicle and it is treated equally with the passenger and the string vehicle only when it is possible to park in one parking zone). The confirmation string of the apartment vehicle is issued, and the remaining vehicles are limited to the extent of passage, entry, parking, and stopping with the visiting vehicle in accordance with the rules on the operation of the parking lot. Thus, it is reasonable to view that the defendant's above assertion has some reasons within the scope.

E. Whether the principle of good faith or abuse of rights is violated

The defendant asserts that the plaintiff, prior to acquiring the ownership of the store of this case, the owner of the building of this case, illegally expands the parking space and reduces the parking space in the above parking space, and thus, the plaintiff, the successor to the store of this case, has the right to parking lot of this case against the principle of trust and good faith. In addition, the plaintiff's assertion that the plaintiff's right to parking lot of this case is against the principle of trust and good faith and it constitutes an abuse of rights as it goes against the limit of the right to use site.

As seen earlier, the Plaintiff is entitled to use the instant parking lot as the right to use the site, and it cannot be deemed that the Plaintiff’s assertion that the Plaintiff has the right to use the instant parking lot solely on the ground that the Plaintiff acquired the instant parking lot from the sectional owner who reduced the commercial parking lot.

또한 을 제16, 34호증의 각 기재만으로는, 원고가 차고지 사용승낙서를 위조하여 화물운수업 영업허가를 취득하였다는 피고의 주장을 인정하기에 부족할뿐더러[갑 제21호증의 2의 기재에 의하면, 원고는 위 사용증명서 위조행위일(2010. 1. 13.)보다 훨씬 이전인 2009. 4. 17. 유니온네트웍스의 사업자등록을 한 사실이 인정된다], 설령 원고가 피고 주장과 같은 경위로 영업허가를 취득하였다고 하더라도, 그와 같은 사유는 영업허가 취소의 사유가 될 수 있음은 별론으로 하고, 원고에 대한 영업허가가 취소되지 아니한 이상 원고가 그 영업을 위하여 이 사건 주차장을 사용할 것을 주장하는 것이 권리남용에 해당한다거나 신의성실의 원칙에 위반된다고 할 수는 없다.

Therefore, this part of the defendant's assertion is without merit.

5. Conclusion

Therefore, the defendant shall not interfere with the entry, passage, and parking of the parking lot in the modern apartment complex located in the Seo-gu, Seo-gu, Gwangju, in accordance with the criteria as shown in the attached Form. The defendant shall not be obliged to pay to the plaintiff 1,00,000 consolation money and damages for delay at the rate of 5% per annum under the Civil Act from June 10, 2009 to September 23, 201, the day following the delivery date of the complaint in the case of damages claim 1,5146, which is the day following the delivery date of this decision, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment. Thus, the plaintiff's claim in this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed because it is without merit. The judgment of the court of first instance shall be justified by accepting part of the defendant's appeal as the judgment of the court of first instance as above.

Judges Park Byung-il (Presiding Judge)