Plaintiff 1 and four others (Attorney Song Jong-chul, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorneys Cho Jong-soo et al., Counsel for the defendant-appellee)

July 17, 2008

Seoul Western District Court Decision 2006Gadan57585 Decided March 28, 2007

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

A. The Defendants are among the electrical and mechanical rooms on the second underground floor of the building listed in the separate sheet of real estate attached to each of the Plaintiffs:

1) 별지 감정도(제3도면) 표시 5, 6, 7, 8, 9, 5의 각 점을 순차로 연결한 선 내 ㉮-1 부분에 설치된 지하저수조(1.5m×2.0m×2.0m), 같은 도면 표시 8, 9, 10, 11, 12, 8의 각 점을 순차로 연결한 선 내 ㉯부분에 설치된 부스타 펌프(1.6m×1.7m×1.6m), 같은 도면 표시 15, 16, 17, 18, 19, 20, 15의 각 점을 순차로 연결한 선 내 ㉰-1 부분에 설치된 열교환기(1.6m×0.2m×0.9m), 같은 도면 표시 21, 22, 23, 24, 21의 각 점을 순차로 연결한 선 내 ㉱ 부분에 설치된 응축수 탱크(0.4m×0.4m×1.4m), 위 ㉱ 부분 지상으로부터 2.0m 높이의 ㉱-1 부분 및 2.5m 높이의 ㉱-2 부분에 각 설치된 위 응축수 탱크의 스팀트랩(0.3m×0.2m), 같은 도면 표시 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 25의 각 점을 순차로 연결한 선 내 ㉲ 부분에 설치된 80만㎉ 온수보일러(4.0m×1.4m ×2.6m) 및 같은 도면 ㉲-1 부분에 설치된 위 온수보일러의 부속시설물(0.4m×1.4m), 같은 도면 표시 37, 38, 39, 40, 37의 각 점을 순차로 연결한 선 내 ㉳ 부분에 설치된 150드럼 온수탱크(4.8m×2.0m×3.0m) 및 같은 도면 ㉳-1 부분, ㉳-2 부분에 설치된 위 온수탱크의 부속시설물(0.4m×1.8m 및 0.4m×2.2m), 같은 도면 표시 41, 42, 43, 44, 41의 각 점을 순차로 연결한 선 내 ㉴ 부분에 설치된 관류형 입형원통 보일러(1.0m×1.5m×2.3m), 같은 도면 표시 45, 46, 47, 48, 45의 각 점을 순차로 연결한 선 내 ㉵ 부분에 설치된 제어판넬(0.9m×0.5m×2.5m) 및

2) 별지 감정도(제4도면) 표시 1, 2, 3, 4, 1의 각 점을 순차로 연결한 선 내 ㉶ 부분에 설치된 터보 후레온 냉동설비(1.1m×1.1m×1.5m) 및 같은 도면 ㉶-1 부분에 설치된 위 냉동설비의 부속시설물(0.5m×0.3m×1.2m), 위 ㉶ 부분 지상으로부터 2.6m 높이의 ㉶-2 및 ㉶-3 부분에 각 설치된 위 냉동설비의 부속시설물(1.8m×0.4m 및 1.5m×0.4m), 같은 도면 표시 5, 6, 7, 11, 5의 각 점을 순차로 연결한 선 내 ㉷ 부분에 설치된 집수정(3.8m×2.8m×3.5m), 같은 도면 표시 7, 8, 9, 10, 11, 7의 각 점을 순차로 연결한 선 내 ㉸ 부분에 설치된 터보 냉동기(3.9m×2.5m×3.5m), 같은 도면 표시 12, 13, 14, 15, 12의 각 점을 순차로 연결한 선 내 ㉹ 부분에 설치된 폐열회수장치(1.6m×2.2m×1.8m), 같은 도면 표시 16, 17, 18, 19, 16의 각 점을 순차로 연결한 선내 ㉺ 부분에 설치된 냉동기 2대(각 0.7m×1.1m×0.9m) 및 같은 도면 ㉺-1 부분에 설치된 위 냉동기의 부속시설물(0.4m×1.1m), 같은 도면 표시 20, 21, 22, 23, 20의 각 점을 순차로 연결한 선내 ㉻ 부분에 설치된 펌프장치(2.5m×1.2m×2.2m)를

each removal of the goods.

B. The plaintiffs' remaining claims are dismissed.

2. 1/5 of the total litigation costs is borne by the Plaintiffs, and the remainder is borne by the Defendants.

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

The judgment of the first instance court is revoked. It is prohibited that the defendants use the underground water tank (7.4m x 3.1m x 2.6m) installed on the upstream part of the line connected each point of the attached Form No. 1, 2, 3, 4, and 1 among the electric and mechanical rooms in the electricity and machinery room in the second basements of the building listed in the attached Form No. 1 (hereinafter “the instant building”) and the attached Table No. 1 (the plaintiffs specified the subject of removal at the trial and specified it more specifically, and changed the claim for the above underground water reservoir that had sought removal to the prohibition of use).

1. Facts of recognition;

The following facts are not disputed between the parties, or acknowledged by Gap evidence 1-1 through 10, Eul evidence 1-1, Eul evidence 16, and the result of this court's inspection and appraisal of the appraiser stuff, and the whole purport of arguments as a result of the survey and appraisal of the appraiser stuff.

A. Status of the parties

1) Of the instant building, Plaintiff 1 is a co-owner of the 3th floor No. 301, 276.65 square meters, 302 square meters, 65.62 square meters, 303 square meters, and 176.71 square meters, and Plaintiff 2 is a co-owner of the 401st floor No. 401, 517.98 square meters, Plaintiff 3 is a 503 and 504 square meters, respectively, 22.92 square meters of the 5th floor No. 503 and 504; Plaintiff 4 is a 6th floor No. 615, 23.77 square meters of the 5th floor, and Plaintiff 5 is a 5th floor owner of the 6th floor No. 24.42, 614 square meters of the 24.09 and No. 7132 square meters of the 75th floor.

2) On January 13, 2001, the Defendants acquired ownership of the first floor sports facilities of 593.43 square meters and resting restaurants of 266.76 square meters (hereinafter “instant store”) among the instant buildings, and engage in friendship or business with the trade name “○○ Heavy Co., Ltd.” at the said store.

B. Installation of each of the instant facilities

1) Of the instant building, the second underground floors are used for the use of electricity, machinery, parking lots, etc. for the entire building as common areas.

2) The Defendants, around January 2001, installed each of the facilities listed in Disposition 1 (hereinafter collectively referred to as “each of the facilities of this case”) on the second floor electric and mechanical room of the above building, such as the separate appraisal map as indicated in Disposition 1, and used it for the Defendants’ secret and business.

2. Determination as to the claim for prohibition against the use of the underground water reservoir in this case

A. The parties' assertion

1) The Plaintiffs asserted that the underground water reservoir stated in the purport of the claim (hereinafter “instant underground water reservoir”) was established for the purpose of using it as a fire-fighting water tank in the original building of this case, and that it belongs to the co-ownership of all sectional owners, but the Defendant used it exclusively and exclusively for the purpose of water supply for friendship or business, and that it interferes with the use and profit-making of other sectional owners, including the Plaintiff.

2) As to this, the Defendants asserted that the above underground water reservoir is a common part belonging to the co-ownership of the sectional owners of the instant building, and the Defendants also are sectional owners of the said building, so the above underground water reservoir can be used for water supply according to its original purpose.

B. Determination

However, the defendants used the instant underground water reservoir installed for the purpose of supplying water and fire fighting water for the entire building of the building of this case for the purpose of shooting down water or water supply for business is insufficient to deem that the defendants exclusively and exclusively use and profit from the above underground water reservoir by preventing the plaintiffs, who are the other sectional owners of the building of this case, from using and making profit from the above underground water reservoir beyond the scope of use according to its purpose. The plaintiffs' claim for this part is without merit, since there is no other evidence to acknowledge it.

3. Determination on each of the instant facilities removal claims

A. The parties' assertion

1) The Plaintiffs asserted that the Defendants are obliged to remove each of the instant facilities to the Plaintiffs seeking the exclusion of exclusive use as an act of preserving common areas, without the consent of sectional owners or the resolution of the management body meeting under the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”).

2) On this issue, the Defendants asserted that ① sectional owners may use the common areas of the aggregate building, which belongs to the common areas of all sectional owners, and that the Defendants’ installation and use of each of the instant facilities on the second underground floor constitutes the use of the common areas for that purpose. ② At the time, the Defendants had the right to install each of the instant facilities with the consent of Nonparty 2, who owned more than the majority of the instant building and was managing the said building, and the Plaintiffs’ request for removal constituted abuse of rights.

B. Determination

1) Whether the Defendants are obligated to remove each of the instant facilities

According to the provisions of the Aggregate Buildings Act, the section for common use belongs to the co-ownership of all the sectional owners (Article 10(1)), each co-owner may use the section for common use according to its use (Article 11), and the matters concerning the change of the section for common use shall be decided by a resolution at an assembly by a majority of not less than 3/4 of all the sectional owners and voting rights: Provided, That if the improvement of the section for common use does not require excessive costs (Article 15(1)), the matters concerning the management of the section for common use except for the case of the main sentence of Article 15(1) may be determined by a resolution at an ordinary assembly, but the act of preservation may be determined by a resolution at an ordinary assembly (Article 16(1)). Each co-owner may conduct the act of preservation (Article 16(1). The section for common use, which is provided to all or some of the sectional owners, is not the purpose of the sectional ownership, and it shall not be determined by the objective purpose of the section for common use.

The second floor electric and mechanical room of the building of this case where each of the facilities of this case is installed is the part provided for the public use by all sectional owners in the structure of the aggregate building, and it is reasonable to deem that the defendants installed each of the facilities of this case in the above section for common use and used the site exclusively. Thus, unless the defendants have a legitimate right to possess and use the section for common use through a joint owner's resolution, the defendants are obliged to remove each of the facilities of this case to the plaintiffs seeking exclusive exclusion from the use of the section for common use.

As to this, the defendants asserted that the act of installing and using each of the facilities of this case is merely the use of common areas according to its purpose. However, even under the provisions of the Aggregate Buildings Act, sectional owners are entitled to use common areas according to their purpose and do not have exclusive authority to occupy them. Thus, it is difficult to view that the defendants are using the common areas of the aggregate buildings in accordance with their purpose with separate facilities necessary for the business of private houses and machinery rooms of the second floor of the building of this case, the common areas of this case, which are common areas, and occupy and use them exclusively. Thus, the defendants' above assertion is rejected.

2) Whether the Defendants obtained legitimate authority to install and use each of the instant facilities in common areas of the instant building with the consent of the manager

The Defendants asserted that the construction of each of the above facilities is lawful, since they obtained consent from Nonparty 2, who owned more than a majority of the building of this case at the time of the construction of each of the above facilities, and managed the above building, to use the second floor machinery room of the above building.

According to the following facts: Gap evidence 1-1 to 10, Eul evidence 1-5-2, 3, Eul evidence 5-3, Eul evidence 6, Eul evidence 11-2, and testimony of non-party 3 and non-party 4 of the first instance trial, the non-party 5 who represented the defendants entered into an management expenses agreement with the non-party 2 around January 10, 201, the co-electric rent shall be determined according to monthly use, and the co-electric rent shall be KRW 1,20,00 (excluding value-added tax), KRW 165,00 (including value-added tax) with the charges for electrical safety, KRW 165,00 (including value-added tax) with the non-party 2's share in the above building, and the non-party 2 agreed that the non-party 4 and the non-party 5's share in the above building should be jointly owned with the non-party 1-6's share in the whole building, which was owned by the non-party 1 and the non-party 4.

On the other hand, the Act on the Ownership and Management of Aggregate Buildings determines the change of the section for common use by a resolution of an assembly by a majority of not less than 3/4 of the sectional owners and voting rights, and the improvement of the section for common use does not require excessive expenses, or the matters concerning the management of the section for common use is decided by a resolution of an ordinary assembly by a majority of the sectional owners and voting rights (Articles 15(1) and 16(1)). In addition, allowing the defendants to exclusively occupy and use the site of each of the facilities of this case on the electrical, mechanical and parking lots of the second underground floor of the building of this case where the defendants are co-owned, as matters concerning the change or management of the section for common use, and it is insufficient to obtain consent from the management authority of the building of this case, and further, the consent by the legitimate

In light of these circumstances, as acknowledged earlier, Nonparty 2 agreed to allow the use of the second floor underground of the instant building while entering into the management expenses agreement with the Defendants, and even if Nonparty 2, as the managing body of the said building, owned a approximately 92.15% of the total share of the instant building with Nonparty 1, a co-owner, it cannot be deemed that Nonparty 2 was delegated the Defendants’ authority to allow the Defendants to exclusively use the common area of the instant building through a lawful resolution of the sectional owners of the instant building under the Aggregate Buildings Act, or that the agreement with Nonparty 2 was effective as substitute for the resolution of the assembly. On the other hand, there is no evidence to deem that the Defendant agreed to exclusively occupy and use the site of each of the instant facilities among the second floor underground floors of the said building with the owner of the instant building and the voting right holder meeting all the requirements for resolution of the sectional owners of the instant building. Accordingly, the Defendants’ aforementioned assertion is without merit.

3) Whether the plaintiffs' claim constitutes abuse of rights

Finally, the Defendants asserted that the removal of each of the above facilities cannot be deemed to cause particular economic benefits to the Plaintiffs, such as there is no plan or need for the use of the facilities of this case, and that there is room to deem that the Plaintiffs did not raise any particular objection to the removal of each of the above facilities before the filing of the lawsuit in this case after the installation of each of the above facilities. On the other hand, in order to remove each of the above facilities, there is a lot of cost for the removal of the facilities, and the Defendants as the Defendants are virtually in fact unable to do so, the Plaintiffs’ claim constitutes abuse of rights.

However, if the exercise of the right can be deemed an abuse of the right, the objective of the exercise of the right is to inflict pain on the other party and to inflict losses on the other party, and there should be no profits on the other party. In an objective view, the exercise of the right should not be viewed as a violation of social order. Unless it does not fall under such cases, even if the other party suffers losses on the other party than the profits that the exercise of the right has gained by the exercise of the right, such circumstance alone does not constitute an abuse of rights. Whether the exercise of the right constitutes an abuse of rights should be determined on an individual and specific basis (see Supreme Court Decision 2002Da62319, 62326, Feb. 14, 2003, etc.).

Considering that the electricity and machinery room of the second floor of the building of this case is an important part in the maintenance and management of the whole building of this case, as long as the location where each of the facilities of this case was installed falls under common areas and the plaintiffs can seek exclusion of interference, the above circumstances alleged by the Defendants alone are merely seeking to inflict pain or damage on the defendant who is the other party to the request for removal of this case and do not have any benefit to the sectional owners of the building of this case. It is difficult to conclude that the defendants did not bear any specific usage fee in relation to the use of the electricity and machinery room of the second floor of the building of this case, and there is no evidence to acknowledge that the claims of the plaintiffs are abuse of rights. Thus, the above assertion by the defendants is without merit.

4. Conclusion

Therefore, the plaintiffs' claims against the defendants are justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance is unfair with different conclusions, part of the plaintiffs' appeal is accepted and the judgment of the court of first instance is modified as above, it is so decided as per Disposition.

[Attachment of Real Estate List and Appraisal]

Judges Cho Young-jin (Presiding Judge)