Applicant (Attorney Choi Han-soo)

Respondent 1 and one other (Attorneys Park Dong-soo et al., Counsel for the defendant-appellant)

Incheon District Court Order 2003Kahap1421 dated August 18, 2003

The appeal of this case is dismissed.

1. Purport of claim

The order of the court below shall be revoked. The respondent shall not run a real estate brokerage business in the building of △△ apartment △△△ Complex (hereinafter “instant commercial building”) in the Nam-gu, Incheon. The execution officer shall publicly announce the purport of the above order in an appropriate manner.

1. Basic facts

According to the records, the following facts are recognized.

A. The applicant operates the real estate brokerage business in the name of the real estate agent of the Do governor in the first floor of the commercial building in this case.

B. On January 21, 2002, the respondent 1 operated a real estate brokerage business with the trade name of the ▽▽▽▽▽▽▽▽▽△, when completing the registration of ownership transfer with respect to the first floor of the shopping mall in the instant case, and following the registration of ownership transfer with respect to the first floor of the shopping mall in the instant case, he operated a real estate brokerage business with the name of the Respondent 2 from June

2. Applicant's assertion

In order to avoid this, the applicant filed a provisional disposition, such as the purport of the application, on the ground that, if the respondent continues to engage in the real estate brokerage business in the first floor of the commercial building in this case, the applicant who is operating the real estate brokerage business in the place where the address of the first floor of the commercial building was located in the commercial building in this case.

A. Although △△ Construction Co., Ltd, while selling the instant commercial building, sold the commercial building in lots, the same type of business for each store does not overlap so that each store store store is able to exclusively engage in the relevant commercial building, the respondent is running a business by changing the type of real estate brokerage business into the real estate brokerage business, so the respondent may seek a prohibition of business.

B. Article 4 (2) of the Rules of the Subdivision, which was established by the sectional owner at the time of moving-in in the commercial building of this case on 1996, provides that "a change in the type of business may be made with the consent of all the shop occupants' general meeting in the event of changing the type of business," and on March 27, 2003, the above provision was amended to "if the store is changed to the same type of business or similar type of business as the existing type of business, it may obtain the consent of all the shop occupants after going through the general meeting of the shop occupants." Thus, each of the above provisions is effective as the management body regulations set forth in the Multi-Unit Residential Building Act ("the Multi-Unitial Building Act"), and its effect is still effective for the respondent pursuant to the provisions of Article 42 of the same Act, so the respondent may seek a business

3. Determination

A. Claim on the duty of prohibition of the same kind of business by a multiple sale contract

According to the records, △△ Construction Co., Ltd may only designate and sell the commercial buildings of this case as living facilities and purchasing facilities, and recognize the fact that the type of business has not been designated, and there is no evidence to find that the type of business has been designated in each store of this case.

Therefore, the applicant can not seek the prohibition of the same kind of business against the respondent based on the above multiple-sale contract.

B. Claim on prohibition of the same kind of business by the regulations of the management body

According to the Act on the Ownership and Management of Aggregate Buildings, matters not provided for in the Act on the Ownership and Management of Aggregate Buildings among matters between sectional owners regarding the management or use of building, site or attached facilities may be determined by regulations (Article 28(1)); regulations and resolutions of the management body meeting are effective against the special successor of sectional owners; while the possessor has the same obligation that the sectional owner bears in relation to the use of building, site or attached facilities according to regulations or the resolution of the management body meeting (Article 42); the establishment, amendment and repeal of regulations are done with the approval of not less than 3/4 of both sectional owners and voting rights at the management body meeting (Article 29(1)); and the resolution of the management body meeting shall be deemed to have been adopted by the management body meeting if there is an agreement in writing with the sectional owners and not less than 4/5 of all voting rights (Article 41(1)).

As above, the Act on the Ownership and Management of Aggregate Buildings limits the voting right holders of the management body meeting to the sectional owners, and Article 40 of the same Act provides that the person who occupies the section of exclusive ownership with the consent of the sectional owners may attend the meeting and state his opinion if he has an interest in the subject matter of the meeting, and the restriction on the type of business by store shall be seriously restricted to the exercise of the property right by the sectional owners. Considering the fact that the enactment and amendment of the management body regulations regarding the restriction on the type of business and the prohibition on the same type of business as that claimed by the applicant, only the sectional owners shall have voting rights, and the lessee

On the other hand, since there are 7 stores in this case and the commercial buildings in this case are subject to sectional ownership, in order to establish or modify the management body regulations, the consent of at least 6 sectional owners or those delegated by them should be first examined.

According to the records, seven non-applicant 2, non-applicant 3, non-applicant 4, non-applicant 5, non-applicant 6, non-applicant 7, non-applicant 7, and non-applicant 8 and signed and sealed the rules of the 7th commercial building conference around 1996, but only non-applicant 4 and non-applicant 7, the non-applicant 7, were the sectional owners of the building of this case at the time of application, and the non-applicant 2, non-applicant 3, non-applicant 5, non-applicant 8 and non-applicant 8 have completed the registration of ownership transfer around 197 or around 1999. The non-applicant 2, non-applicant 3, non-applicant 5, non-applicant 6, and non-applicant 8 were entitled to legitimate authority to establish the rules of the management body of the commercial building of this case, but there is no explanation as to the fact that the non-applicant 2, non-applicant 3, non-applicant 6, and non-applicant 8 were the sectional owners.

According to the above facts, it cannot be deemed that there was the consent of at least six sectional owners necessary for the establishment of the management body rules, and the applicant cannot file a claim against the respondent for prohibition of business based on the above rules.

In addition, according to the records, the non-applicant 2, non-applicant 1, non-applicant 4, non-applicant 9, applicant 10, non-applicant 10, and non-applicant 3 revised Article 4 (2) of the Rules of the 7th Commercial Building Association which was previously prepared on March 27, 1993. However, as long as there is no explanation as the non-applicant 1 and non-applicant 9 are not the sectional owner of the commercial building of this case, so they are not legally delegated voting rights from sectional owner, the above amendment rules are merely the amendment with the consent of five sectional owners, and thus, they cannot be deemed as the management body rules that affect the respondent.

4. Conclusion

Therefore, the order of the court below that dismissed the application of this case is just because there is a lack of vindication of the right to be preserved, and it is so decided as per Disposition as the appeal of this case is groundless.

Judges Lee Lee-dae (Presiding Judge)