2017Na6859 Management Expenses

Atel Self-Governing Management Steering Committee

B An incorporated association

Jeonju District Court Decision 2016Gaso3923 Decided May 25, 2017

November 1, 2017

November 22, 2017

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 2,267,731 won and the interest rate of 15% per annum from August 5, 2016 to the day of full payment.

1. Basic facts

A. The Plaintiff has been managing Atel located in Jeonju-si C (hereinafter referred to as “the instant officetel”). On January 20, 2015, the Defendant is the owner of the instant officetel 213, who completed the registration of ownership transfer on the ground of sale on December 28, 2014, with respect to the instant officetel 213 on December 20, 2015.

B. The relevant provisions of the Management Rules of the Officetel Self-Governing Management Operating Committee are as follows.

Article 12 (Duties of Occupants, etc.)

2. Management expenses and special cases necessary for the maintenance and management of common use, etc. of officetels.

The repair reserve shall be borne every month.

Article 14 (Succession to Management Obligations)

1. The operating committee shall exercise a claim on management expenses, fees for use and allowances for special repair even for a successor to the status of the owner;

C. As to the instant officetel 213, KRW 2,267,731 was unpaid from January 201 to June 2016, with respect to the instant officetel 213.

D. From around 2005, the Plaintiff obstructed the entrance door of the second floor of the instant officetel (hereinafter “the instant closure measures”), and thereafter, the Defendant, the former owner of the instant 213 or his specific successor, did not use or benefit from the instant officetel.

[Ground of recognition] Facts without dispute, Gap evidence 1 and 2, Eul evidence 2, Eul evidence 2, the purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

According to the above facts, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff the unpaid management amount from January 2013 to January 19, 2015 (see, e.g., Supreme Court Decision 2004Da3598, 3604, Jun. 29, 2006) of the unpaid management amount (see, e.g., Supreme Court Decision 2004Da3598, 3604, Jun. 29, 2006) and the unpaid management amount from January 20 to June 2016 and delay damages for each of the above amounts.

B. Determination as to the Defendant’s assertion

1) The Defendant asserts that the Plaintiff did not have the obligation to pay management fees to the Plaintiff, since the Plaintiff’s unlawful use obstruction did not use and profit from the instant officetel 213.

2) If a sectional owner of a building could not use or gain profit from the building due to unlawful obstruction of use, such as measures to cut electricity and water and suspend the operation of elevators taken by the managing body, including the managing body of an aggregate building, the sectional owner does not bear the obligation to manage the building during the period (see, e.g., Supreme Court Decision 2004Da3598, 3604, Jun. 29, 2006).

3) Regarding the instant case, the Plaintiff: (a) from around 2005, the Plaintiff took the instant closure measures; (b) the Plaintiff’s former owner or the Defendant’s failure to use and profit from the instant officetel 213 during the period for which the Plaintiff sought unpaid management fees, as seen earlier; and (c) there is no ground to believe that the Plaintiff’s instant closure measures pursuant to the management rules, i.e., the following circumstances that can be acknowledged by comprehensively considering the overall purport of the pleadings in the written evidence No. 4 and No. 1; (b) the former District Prosecutors’ Office did not impose a non-prosecution disposition with regard to the suspicion of interference with the business of the Plaintiff regarding the instant closure measures with respect to D, the chairperson of the instant case, (c) but (d) the former District Prosecutors’ Office did not impose a non-prosecution disposition with regard to the charge of interference with the business of the Plaintiff (Evidence No. 1402, 2016), which appears to have taken account of the circumstances in which the Plaintiff assumed office as the Plaintiff’s chairperson after the instant closure measures.

Therefore, since the plaintiff's tort caused the plaintiff's tort to use and benefit from 213 of the officetels of this case, there is no obligation for management expenses during the period for which the plaintiff claimed that it was impossible to use and benefit from 213 among the officetels of this case, the defendant's above assertion is reasonable (as long as the defendant's assertion is admitted,

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judgment of the presiding judge;

Judges Gender Equality;

judge inducedd