2013Na76453 Management Expenses

OOOO first apartment council of occupants' representatives

Representative ○○○

Attorney ○-○, et al.

○○○ Apartment Housing Reconstruction Project Association

Representative ○○○○

Attorney ○-○, et al.

Law Firm ○○, Attorneys OOO and OO

Seoul Eastern District Court Decision 2013Gahap8159 Decided November 1, 2013

June 20, 2014

July 11, 2014

1. Revocation of a judgment of the first instance;

2. The case is remanded to Seoul Eastern District Court.

The judgment of the first instance shall be revoked. The defendant shall be KRW 618,082,750 and the father of June 1, 2013 as to the plaintiff.

ter 5% per annum and 20% per annum from the following day to the date of delivery of a copy of the complaint of this case

(1) pay the amount of money calculated in the proportion of each of the following.

1. Basic facts

The reason why this Court is used is that the corresponding part of the reasoning of the judgment of the court of first instance is the same as that of the corresponding part of the reasoning of the judgment of the court of first instance.

2. Determination on this safety defense

A. The defendant's argument

In this case, the plaintiff against the defendant who is the owner of 3,137 households among the apartment of this case.

12. The Defendant claims for the payment of delinquent management expenses, KRW 618,082,750, and damages for delay from around May 12, 2013. The instant resolution did not satisfy the requirements of the incumbent members under Article 50(1) of the Enforcement Decree of the Housing Act and Article 17(1) of the Rules on the Management of Apartments of this case, and thus, the Plaintiff’s lawsuit in this case is unlawful.

2) The plaintiff is virtually disavable as the reconstruction project is being implemented, and there is no entity as the council of occupants' representatives, and some of the non-resident households are transferred management expenses due to their non-existence of the council of occupants' representatives to the relocating household on the ground that they do not have any entity, which constitutes abuse of the right of recourse.

B. Determination

1) As regards the Defendant’s first argument, the council of occupants’ representatives constituted under the Housing Act shall be deemed an unincorporated association. As such, the right of the council of occupants’ representatives to claim management fees against occupants, etc. shall be deemed property rights belonging to the quasi-general shares of the members of the council of occupants’ representatives. Therefore, in cases where the council of occupants’ representatives intends to manage and dispose of the right to claim management fees against occupants, it shall follow the articles of association or other rules of the council of occupants’ representatives, or where such regulations are not provided, a resolution of the general meeting of members of the council of occupants’ representatives shall be adopted pursuant to Article 275 of the Civil Act (see

Article 77 (1) of the Management Rules of the apartment of this case "the management entity may issue a demand notice where occupants, etc. fail to pay management expenses, etc." (Article 77 (2) of the Management Rules of the apartment of this case. "The management entity may file a lawsuit against the households in arrears with the management expenses, etc. even after the management entity has issued a demand notice, such as collection of additional charges and issuance of demand notice, an application for payment order under the Civil Procedure Act, or a small-sum appeal under the Trial of Small Claims Act, etc." (Article 77 (1) of the Management Rules of the apartment of this case.

B) In the instant management rules, where the occupants, etc. fail to pay the management expenses, it has been clearly stipulated that the management entity may file a lawsuit only when the management entity claims the management expenses, and there is no mentioning any other claims other than the management expenses. However, in the case of the management expenses claim, other claims are treated differently.

D) Where the council of occupants' representatives of multi-family housing appoints the head of the management office as the representative of the autonomous management body and autonomous management of multi-family housing pursuant to Article 43(2) and (4) of the Housing Act, the management office of multi-family housing is an internal management organization under the supervision and supervision of the council of occupants' representatives, and it is difficult to view the management office of apartment as an independent organization separate from other organizations, and the management office has no capacity to seek management expenses, and the management office is performing the duties of collecting management expenses by delegation from the council of occupants' representatives, and the council of occupants' representatives has no choice but to file a lawsuit against the occupants directly. Ultimately, the management office

Therefore, the Defendant’s first argument premised on the need for a separate resolution to file the instant lawsuit cannot be accepted without the need to further examine the other issues.

2) As to the Defendant’s second argument, Article 50(1) of the Enforcement Decree of the Housing Act provides that “The council of occupants’ representatives shall consist of at least four persons, and shall consist of representatives for each building elected in proportion to the number of households for each building pursuant to the electoral district prescribed by the rules on collective housing management,” and Article 17(1) of the Rules on the Management of Apartment Buildings of this case provides that “The representatives for each building constituting the council of occupants’ representatives shall have a total of 74 representatives for each building, each of whom shall be

In light of the above relevant provisions and the facts acknowledged earlier, the council of occupants' representatives was constituted according to the existing legitimate procedures, and a large number of households currently reside in the apartment of this case, and the second council of occupants' representatives was held in the presence of the representatives by each Dong on April 1, 2013. The plaintiff cannot be deemed to have any substance as the council of occupants' representatives due to the death of the plaintiff. Even if the plaintiff's relocation of all households of the apartment of this case led to the absence of the members of the council of occupants' representatives, the plaintiff, a non-corporate group, still becomes the subject of rights and obligations within the scope of liquidation (see Supreme Court Decision 2006Da41297, Nov. 16, 2007).

As long as the plaintiff has the substance as the council of occupants' representatives, the plaintiff filed a lawsuit seeking payment of overdue interest against the defendant who is the owner of 3,137 households among the apartment of this case pursuant to the apartment management rules of this case, and it cannot be viewed as an abuse of the right of lawsuit. Thus, the defendant's second argument cannot be accepted.

[On the other hand, the Plaintiff filed a lawsuit against the Defendant for the payment of delinquent management expenses up to November 201, and won the entire lawsuit on September 6, 2012 (Seoul East Eastern District Court 201Gahap22755), and the Defendant filed an appeal on April 5, 2013, but the appeal was dismissed (Seoul High Court 2012Na79097), and the above judgment became final and conclusive around that time. The Defendant asserted that the Plaintiff’s lawsuit constitutes an abuse of the right to file a lawsuit even in the above appellate court, but did not accept it (No. 5-1, No. 2).

Therefore, all of the defendant's defenses cannot be accepted.

3. Conclusion

Therefore, the judgment of the court of first instance which accepted the defendant's main defense and dismissed the lawsuit of this case is unfair, and thus, the case of this case is remanded to the Seoul Eastern District Court, which is the legal ground of the first instance, pursuant to the main sentence of Article 418 of the Civil Procedure Act. It is so decided

Judges Kim Jong-soo

Judges Han Young-young

Judge Shin Jae-ok