[Defendant-Appellee] The Head of Si/Gun/Gu (Law Firm Masung, Attorney Shin Jong-sung, Counsel for defendant-appellee)

Defendant (Appointed Party)

[Defendant-Appellee] The Head of Si/Gun/Gu Office (Law Firm Freedom, Attorney Ha Jae-hun, Counsel for defendant-appellee)

June 3, 2014

Seoul Northern District Court Decision 2012Da40612 Decided November 15, 2013

1. Revocation of the first instance judgment.

2. All of the plaintiff's claims are dismissed.

3. The application for intervention by the defendant's assistant intervenor shall be permitted.

4. The total cost of the lawsuit shall be borne by the Plaintiff, including the cost of participation.

1. Purport of claim

When the defendant (appointed parties, hereinafter referred to as "the defendant") and the designated parties (hereinafter referred to as "the defendant, etc.") collectively refer to the defendant and the designated parties (hereinafter referred to as "the defendant, etc.") shall pay to the plaintiff the amount at the rate of 20% per annum from April 12, 2013 to the date of full payment in the "amount claimed by the defendant, etc." attached Table 1.

2. Purport of appeal

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

1. Presumed factual basis

A. The Plaintiff is a management body comprised of all sectional owners of the five underground floors in Seoul Special Metropolitan City, Nowon-gu ( Address omitted), sales facilities of the nine-story above ground, educational research and welfare facilities, and the aggregate building of sports facilities (hereinafter “instant commercial buildings”), and the Defendant, etc. is a person who sells and operates the relevant shop in each of the items indicated in the column of “No. 1” in the attached Table 1.

B. The Defendant, etc. entered into a commercial building management contract with the Plaintiff while moving in the commercial building of this case, and the main contents of the management fee are as follows.

Article 4 (Calculation of Management Expenses) ① The monthly management expenses included in the main sentence shall be the amount used. Article 5 (Payment of Management Expenses) ③ even if the leased object has not been used during the term of validity of the monthly management expenses, the "B" shall pay the management expenses under the contract pursuant to Article 4 (1). Article 6 (Management Expenses and Facility Fees) ① The "B (Defendant, etc.)" shall pay each month the expenses under the method calculated by "A (Plaintiff, etc.)" on the basis of the following starting expenses (a) direct expenses (such as electricity, gas, water supply and drainage, water supply and drainage, heating and cooling, heating and cooling, telephone supply, exchange charges, all public charges, etc.).

C. The Plaintiff’s board of directors, following a resolution, set the management fee rate for each floor and item of the instant commercial building as shown in the attached Table 2 “management fee rate”, calculated the total management fee rate for each floor of the instant commercial building from July 1, 2008 to the present day according to the above management fee rate, and imposed and collected management fee for the shop owners and shop occupants in the instant commercial building in a manner divided according to the size of the relevant store by floor.

D. However, from around December 201, the defendant et al. raised an objection to the method of calculating the management expenses imposed by the plaintiff and did not pay it (However, the defendant did not pay the management expenses from September 2009). Accordingly, on August 23, 2012, the plaintiff claimed the payment of the unpaid management expenses to the defendant et al., and the defendant et al. (excluding the defendant) arbitrarily calculated the management expenses in arrears, and deposited them with the Seoul Northern District Court on September 11, 2012 on the ground of the plaintiff's refusal to receive (No. 2781).

E. Meanwhile, on September 18, 1996, Pakistan Co., Ltd. obtained a market establishment permit from the head of Nowon-gu pursuant to Article 6 of the former Wholesale and Retail Trade Promotion Act (repealed by Act No. 5327 of Apr. 10, 1997) with respect to the commercial building of this case. The establishment registration of a superstore was deemed to have been made pursuant to Article 3 (1) of the former Addenda to the Distribution Industry Development Act, enacted and promulgated as Act No. 5327 of Apr. 10, 1997, and enforced as of July 1, 1997. The Defendant Intervenor thereafter reported the establishment of a superstore manager on Oct. 30, 2013 with the consent of two-thirds or more of the occupant occupants of the commercial building of this case, and received the confirmation certificate from the head of Nowon-gu on Dec. 30 of the same year.

F. As of March 2013, the remainder unpaid management expenses after deducting the amount deposited by the Defendant, etc. from each management expenses that the Defendant, etc. did not pay to the Plaintiff as of March 2013 are as stated in the column of the “unpaid Management Expenses” column in attached Table 1.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 16, Eul evidence 20 to 22 (including each number), Eul evidence 1 to 5, 8, 10, 11 (including each number), the fact inquiry results with respect to the head of Nowon-gu in the first instance court, the purport of the whole pleadings, as a result of the fact inquiry,

2. Whether the application for intervention by the Defendant Intervenor is legitimate

A. The Defendant Intervenor filed an application for intervention in order to assist the Defendant, etc. as the actual party who has the authority to impose and collect the management expenses of the instant commercial building and has an interest in the result of the instant judgment. Accordingly, the Plaintiff did not have the authority to impose and collect the management expenses of the instant commercial building. Although the Defendant Intervenor received the certificate of completion of report from the head of Nowon-gu, the Plaintiff did not have the authority to impose and collect the management expenses of the instant commercial building. However, even if the Defendant was the right to impose and collect the management expenses from the Defendant Intervenor on and after December 30, 2013, even if the Defendant was the right to impose and collect the management expenses of the instant commercial building, the right to impose and collect the management expenses on and after the Defendant Intervenor received the certificate of completion of report, the Plaintiff filed an objection with the Defendant Intervenor without any authority to do so.

B. In order to assist one of the parties in a specific litigation case, there must be an interest in the outcome of the lawsuit in question. The term "interest" refers to a legal interest rather than an interest in actual, economic, or appraisal. This refers to a case where the judgment in question is subject to res judicata or executory power of the judgment in question, or where the legal status of the person who intends to participate in the lawsuit is determined based on the premise of the judgment at least the judgment (see Supreme Court Decision 99Da12796, Jul. 9, 199, etc.). Thus, the defendant's assistant intervenor established on Oct. 30, 2013 as the representative director is entitled to make a report on the management expenses of the commercial building in question to the Nowon-gu Office on Nov. 1, 2013, which is the date of closing the argument in the first instance trial, and the defendant's assistant supervisor's right to request the payment of the management expenses of the commercial building in question is reasonable under the premise that the plaintiff is entitled to receive the payment from the head of Nowon-gu on Dec. 30 of the same year.

3. Determination as to the cause of action

A. The plaintiff's assertion

As the cause of the instant claim, the Plaintiff is entitled to impose and collect management fees against the Defendant, etc., who is the shop occupants of the said commercial building, which is an aggregate building, and the Defendant, etc. entered into a commercial building management agreement with the Plaintiff to pay the management expenses incurred by the use of the said commercial building to the Plaintiff according to the method calculated by the Plaintiff. Accordingly, the Defendant, etc. is obligated to pay the unpaid management expenses to the Plaintiff pursuant to the said commercial building management agreement.

B. Determination

1) 유통산업발전법 제12조 는 대규모점포의 개설등록을 한 자(이하 ‘대규모점포개설자’라 한다)가 수행하는 업무로서 상거래질서의 확립, 소비자의 안전유지와 소비자 및 인근 지역 주민의 피해·불만의 신속한 처리, 그 밖에 대규모점포의 유지·관리를 위하여 필요한 업무를 규정하면서( 제1항 ), 매장이 분양된 대규모점포에 있어서는 매장면적의 2분의 1 이상을 직영하는 자가 있는 경우에는 그 직영하는 자가( 제2항 제1호 ), 매장면적의 2분의 1 이상을 직영하는 자가 없는 경우에는 입점상인 3분의 2 이상이 동의하여 설립한 민법 또는 상법에 의한 법인[ 제2항 제2호 ㈎목 ], 중소기업협동조합법에 의한 협동조합 내지 사업협동조합[ 같은 호 ㈏목 ], 자치관리단체[ 같은 호 ㈐목 , 이 경우 6월 이내에 ㈎목 또는 ㈏목의 규정에 의한 법인·협동조합 또는 사업조합의 자격을 갖추어야 한다]가 위 각 대규모점포개설자의 업무를 수행하고, 위 각 경우에 해당하는 자가 없는 경우에는 입점상인 2분의 1 이상이 동의하여 지정하는 자[ 같은 호 ㈑목 , 이 경우 6월 이내에 ㈎목 또는 ㈏목 의 규정에 의한 법인·협동조합 또는 사업조합을 설립하여야 한다]가 위 각 업무를 수행하고, 그와 같이 대규모점포개설자의 업무를 수행하게 된 자는 관할관청에 신고를 하여야 하며( 제3항 , 유통산업발전법 시행규칙 제6조 제2항 은 그 신고를 마친 자를 ‘대규모점포관리자’라고 정의하고 있다), 매장이 분양된 대규모점포에 있어서 대규모점포개설자 내지 대규모점포관리자가 수행하는 위 각 업무 중 ‘구분소유와 관련된 사항’에 대하여는 집합건물의 소유 및 관리에 관한 법률(이하 ‘집합건물법’이라 한다)에 따르도록 규정하고 있다( 제4항 ). 위와 같이 유통산업발전법은 구분소유자 전원으로 당연 설립되는 집합건물법상의 관리단이 아닌 입점상인들에 의해서 설립되는 대규모점포관리자에게 대규모점포의 유지·관리에 관한 일반적인 권한을 부여하면서도, ‘구분소유와 관련된 사항’에 관하여는 구분소유자단체인 관리단에 의해서 설정된 규약 또는 관리단 집회의 결의 등 집합건물법의 규정에 따르도록 함으로써 대규모점포의 관리에 있어서 구분소유자와 입점상인 사이의 이해관계를 조절하고 있다. 따라서 유통산업발전법의 입법 취지 및 집합건물법과의 관계를 고려하면, 대규모점포관리자의 업무에서 제외되는 ‘구분소유와 관련된 사항’이라 함은 대규모점포의 유지·관리 업무 중 그 업무를 대규모점포개설자 내지 대규모점포관리자에게 허용하면 점포소유자들의 소유권 행사와 충돌이 되거나 구분소유자들의 소유권을 침해할 우려가 있는 사항이라고 해석함이 타당하고, 위와 같은 법리에 비추어 볼 때 대규모점포관리자가 대규모점포의 구분소유자들이나 그들로부터 임차하여 대규모점포의 매장을 운영하고 있는 상인들을 상대로 대규모점포의 유지·관리에 드는 비용인 관리비를 부과·징수하는 업무는 점포소유자들의 소유권 행사와 충돌되거나 구분소유자들의 소유권을 침해할 우려가 있는 ‘구분소유와 관련된 사항’이라기보다는 대규모점포의 운영 및 그 공동시설의 사용을 통한 상거래질서의 확립, 소비자의 보호 및 편익증진에 관련된 사항으로서 대규모점포 본래의 유지·관리를 위하여 필요한 업무에 속하는 것이라고 봄이 상당하다( 대법원 2011. 10. 13. 선고 2007다83427 판결 참조).

2) In light of the above legal principles, the instant case was established on October 30, 2013 with the consent of 2/3 or more of the shop occupants of the instant commercial building, where the Defendant’s assistant participant was sold in lots, and reported to the Nowon-gu Office on November 1, 2013, and received the confirmation letter from the head of Nowon-gu on December 30 of the same year. As seen earlier, the Defendant’s assistant participant is a superstore manager who performs the business of the superstore operator of the instant commercial building under Article 12 of the Distribution Industry Development Act, and is entitled to impose and collect management fees, which are expenses incurred in the maintenance and management of the instant commercial building, from the sectional owners of the instant commercial building or the shop occupants who leased and operated the said commercial building, while the Plaintiff loses the authority to impose and collect the management fees of the instant commercial building.

3) As to this, the Plaintiff asserts that the management body agreement has the authority to impose and collect management expenses on the Plaintiff, who is the managing body of the instant commercial building, as well as the grounds for the management body agreement, and that the shop occupants including the Defendant, etc. concluded the contract with the Plaintiff to pay management expenses to the Plaintiff, the Plaintiff still has the authority to impose and collect the management expenses of the said commercial building, and even if the Plaintiff had the right to claim management expenses against the Defendant Intervenor, this is only recognized as management expenses after December 30, 2013, which received the confirmation from the head of Nowon-gu, and there is no authority to do so

In light of the above, if the plaintiff has the authority to impose and collect management fees for the commercial building in this case under the Act on the Development of Distribution Industry, the tenant's right to impose and collect such fees may be placed in danger for the tenant's tenant who owns and operates the commercial building under the Act on the Management of Aggregate Buildings. ② If the tenant's tenant who occupies and uses the store is separated from the tenant's store, the tenant's right to property should be guaranteed by receiving the fees for the use of the store from the tenant. Thus, even if the tenant's tenant who actually operates the store is allowed to do so with the assistant tenant's tenant's assistant tenant's right to impose and collect the management fees for the commercial building in this case without the consent of 2/3 or more of the tenant's assistant tenant's tenant's tenant's tenant's tenant's tenant's tenant's tenant's tenant's tenant's tenant's tenant's tenant's tenant's right to impose and collect management fees for the commercial building in this case, the plaintiff's right to impose and management fees for the commercial building can be seen.

C. Sub-committee

Therefore, the claim of this case, based on the premise that the Plaintiff had the authority to impose and collect the management fee against the Defendant, etc., who is the shop occupants of the commercial building of this case, is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendant et al. is dismissed as it is without merit, and the judgment of the court of first instance, which has different conclusions, is unfair, and all of the plaintiff's claim is dismissed. It is so decided as per Disposition.

[Attachment List, etc. omitted]

Judges Ground (Presiding Judge)