[1] Whether the council of occupants' representatives of multi-family housing has the standing to file a lawsuit seeking nullification of the resolution of the representative election (affirmative)

[2] Whether a member of the council of occupants' representatives whose term of office has expired has the interest in a lawsuit seeking confirmation of invalidity of the resolution of the representative election (affirmative with qualification)

[3] The method of determining whether it constitutes "the alteration of common use area" requiring resolution by the management body meeting under Article 15 (1) of the Act on the Ownership and Management of Aggregate Buildings

[1] Article 31 of the Civil Act, Article 43(3) of the Housing Act, Article 50 of the Enforcement Decree of the Housing Act, Article 52 of the Civil Procedure Act / [2] Article 43(3) of the Housing Act, Article 50 of the Enforcement Decree of the Housing Act, Article 250 of the Civil Procedure Act / [3] Articles 15(1) and 41(1) of the Act on the Ownership and Management of Aggregate Buildings

Plaintiff 1 and three others

○○ apartment council of occupants' representatives

Daejeon High Court Decision 2006Na1174 decided Nov. 24, 2006

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the qualifications for the defendant and the interest in the confirmation

Since the council of occupants' representatives of multi-family housing is an unincorporated association consisting of representatives of each building elected in proportion to the number of households of each building, seeking the confirmation of invalidity of the resolution of election of the representatives of each building is ultimately a dispute over the qualification of members of the council of occupants' representatives, and thus the council of occupants' representatives has the standing to be accused in the lawsuit seeking confirmation of invalidity of the resolution. In addition, even if the term of office expires, the members of the council of occupants' representatives can perform their duties until new members are elected to the necessary extent, barring special circumstances. Thus, it is difficult to view that the mere fact that the term

In this regard, the court below's decision that the defendant's council of occupants' representatives has the standing to be the defendant in confirming the invalidity of the resolution of the representative election, and that the plaintiffs have the interest to confirm is justified, and therefore,

2. On grounds for dissolution of the council of occupants' representatives

Article 15(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act on the Ownership and Management of Aggregate Buildings”) provides that “The matters concerning the change of the section for common use shall be determined by a resolution at an assembly by a majority of not less than 3/4 of both sectional owners and voting rights: Provided, That if the improvement of the section for common use does not require excessive costs, it may be determined by a resolution at an ordinary assembly,” and Article 41(1) of the same Act provides that “if there exists an agreement in writing with the sectional owners and voting rights concerning the matters determined to be resolved at the management body meeting by this Act or regulations, at least 4/5 of all sectional owners and voting rights, the resolution at the management body meeting shall be deemed to have been adopted.” The change requiring the above resolution at the management body meeting shall be determined by considering the change in the appearance and structure of the existing section for common use, and the scope thereof, the method or mode of the change, the identity of the appearance or use after the change, and other expenses required for the change.

According to the facts duly admitted by the court below and the evidence adopted by the court below, the council of occupants' representatives of the apartment of this case formed a subcommittee for improvement of the existing heating system to improve the actual condition of the existing apartment of this case and concluded that the adoption of the district heating among the central heating, district heating, small-sized heat power generation, and the individual heating is the most efficient. Accordingly, the council of occupants' representatives held an explanatory meeting to convert the district heating system to the district heating. As to the conversion of the heating system to the district heating, the council of occupants' representatives of the apartment of this case must remove the district heating system of this case with the consent of 2,396 households (76.2%) among 3,144 households of the apartment of this case, the unit of the district heating system of this case was permitted to file an application for permission to change the district heating system to the district heating system. In order to convert the existing central heating system into the district heating system, 8 boiler installed in the central boiler room, 11, hot-water pumps equipment, water tank and heating pumps installed in the central heating system.

In light of the above facts in light of the legal principles as seen earlier, in order to change the existing centralized heating system of the apartment of this case to the district heating, most of the central heating system and piping system corresponding to the existing section for common use should be removed and a new heating system and piping system shall be installed for the district heating, and the cost of the installation shall reach approximately KRW 7 billion. Therefore, the change of the section for common use that substantially alters the form or utility of the section for common use. In such a case, an agreement shall be made by a majority of at least 3/4 of the sectional owners and voting rights, or by a written agreement of at least 4/5 of the sectional owners and voting rights, respectively, pursuant to Articles 15(1) and 41(1) of the Aggregate Buildings Act. The former council of occupants' representatives shall only obtain a written consent from the occupants of the apartment of 3,144 households and to make a change in the heating system with the consent of 2,396 households and to apply to the competent authority for permission

On the other hand, Article 18(5) of the Management Rules of the apartment of this case provides that a resolution of dissolution may be made if special grounds arise, such as where the council of occupants' representatives commits an act in violation of the related Acts and subordinate statutes and the management rules, causing a serious loss to occupants, etc., such as the residents, etc., by doing so. In the process of changing the heating method of the apartment of this case to the district heating, the court below should specifically examine whether the former council of occupants' representatives caused a serious loss to occupants, etc. due to an act in violation of the Act on the Ownership and Management of Aggregate Buildings in the process of changing the heating method of the apartment of this case to the district heating, and determine whether the cause for dissolution against the former council of occupants' representatives is legitimate. Therefore, the court below erred by misapprehending the legal principles as to the alteration of common areas under the Act on the Ownership and Management of Aggregate Buildings, which affected the conclusion of the judgment,

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)