The case holding that the right to continue to occupy the gas supply facilities, etc. cannot be deemed to exist on the ground that a new apartment supplier and a new apartment supplier have no right to occupy the gas supply facilities, etc. on the sole basis that a new apartment supplier and a new apartment supplier have entered into an independent gas supply contract, where a new apartment supplier and a new apartment supplier have established a gas supply supply facility, etc. in lieu of supplying gas to apartment apartments until the life of the gas storage tank has fully satisfied.

The case holding that the right to continue to occupy the gas supply facilities, etc. to a gas supply business operator cannot be held only on the ground that a new apartment supplier and a new apartment supplier have no right to enter into an apartment supply contract, where a new apartment supplier and a new apartment supplier have entered into an independent gas supply contract, and a new apartment supplier have no right to occupy the gas supply facilities, etc., if he/she had established an apartment without compensation until the lifespan of the gas storage tank is fully fulfilled.

[1] Articles 105 and 453 of the Civil Code

The next literature and nine others (Seoul Northern Law Firm, Attorneys Kim Jong-hee et al., Counsel for the plaintiff-appellant)

Large Energy Co., Ltd. (Attorney Kim-hee et al., Counsel for the defendant-appellant)

Daegu District Court Decision 9Da7350 delivered on January 26, 2001

Supreme Court Decision 2001Da84398 Delivered on April 12, 2002

1. All appeals by the defendant against the plaintiffs are dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant shall deliver all of the gas supply rooms, gas supply rooms, and storage facilities listed in the annexed sheet to the plaintiffs.

2. Purport of appeal

The judgment below is revoked. The plaintiffs' claims are dismissed.

1. Basic facts

The following facts are not disputed between the parties, or there is no dispute between Gap evidence 1-1 to 10, Gap evidence 2-1, Eul evidence 4-1, 2, 3, Gap evidence 6, 7, 9, 27 through 31, Eul evidence 1-5, 11, and 12, and Eul evidence 1-5, 11, and 12, and the testimony of the court below and the court of the trial, and the testimony of leapju, and there is no counter-proof.

(a)In 193, the member housing company (hereinafter referred to as the "non-party company") newly constructed the members of the 492 household units on the ground of Ansan-dong 168-6, Ansan-dong 133-7, Ansan-dong 1993.

B. On April 8, 1993, the Defendant newly built a gas supply room, gas supply and storage facility, etc. listed in the annexed list with the Nonparty Company (hereinafter “instant gas supply room, etc.”) at the Defendant’s expense, and transferred it to the Nonparty Company without compensation. On the other hand, the Defendant entered into a gas supply contract with the Defendant to supply gas to the above apartment until the life expectancy of the said gas storage tank exceeds the above apartment, and newly constructed the gas supply room, etc. at the expense and transferred it to the Nonparty Company without compensation.

C.In selling the above apartment 492 households, the company sold the gas supply room of this case to the buyers including the plaintiffs as common areas of the above apartment.

D. The non-party company has managed the above apartment from around 1994 to one year, and thereafter, according to the resolution of the occupants' general meeting of the apartment of this case, the non-party general management company entrusted the management of the non-party general management company from December 10, 1994 to August 10, 196, and since August 10, 1996, the occupants are under self-management with the approval of the autonomous management organization. Since August 10, 1996, the Defendant continued to supply the gas even after the management period of the non-party company has expired, and until now the gas supply room, etc.

(e)The occupants of the apartment house held a General Assembly on June 8, 199 and decided on June 8, 199 that the 316 generation residents of the 492 household will attend the 492 household to suspend the supply of the Defendant on a unanimous basis and supply the gas to each of the above apartment units;

F. The plaintiff's tea uniform 103, 605, 101, 412, 101, 412, 101, 708, 101, 1115, 102, 605, 103, 1207, 105, 105, 103, 502, 502, 105, 103, and 502, 103, 502, 103, 703, and 101, 702, and 101, 702, are co-owners of the above apartment house.

2. Judgment on the plaintiffs' assertion

According to the above facts, the plaintiffs are co-owners of the gas supply room of this case. Thus, the defendant is obligated to deliver the gas supply room of this case to the plaintiffs seeking the delivery of the gas supply room of this case as co-owners' act of preservation unless there are special circumstances.

3. Judgment on the defendant's assertion

A. After the right to manage the apartment of this case from the non-party company to the council of occupants' representatives was devolved, the defendant continued to supply gas after notifying the non-party company to the chairperson of the council of occupants' representatives of this case the right to manage the apartment of this case to establish the gas supply room of this case, and continuously supplied the gas, without raising any objection thereto. Rather, the council of occupants' representatives requested the establishment of guard-insium and C.T.V. facilities (C.T.V.) as a response to gas supply. Article 28 of the supply regulations posted on the bulletin board of each apartment of this case states that the right to manage the apartment of this case exists to the defendant and the non-party company, the occupants also knew of the gas supply contract between the defendant and the non-party company. Thus, even if the above gas supply contract was implicitly succeeded to the apartment of this case, the defendant asserts that he has the right

In full view of the whole purport of the oral argument, the defendant, around December 1994, notified the fact that the right to manage the apartment of this case was transferred from the non-party company to the council of occupants' representatives to the chairperson, etc. under the condition of gas supply to the apartment of this case. On August 10, 1996, the plaintiff continued to supply gas. Since the self-management of the apartment of this case was implemented from around August 10, 1996, the plaintiff presented favorable conditions to comply with the right to gas supply of the apartment of this case to the non-party company of this case, and continued to establish a guard house of this case to the non-party company of this case and the non-party company of this case's testimony (excluding the non-party's testimony that is not trusted after the non-party company's testimony). The defendant did not agree to the above fact that the non-party company and the non-party witness of this case did not have any other reasons to recognize that the plaintiff's right to gas supply of the apartment of this case had no other reasons.

B. In addition, the defendant asserts that the defendant has the right to possess and use the gas supply room, etc. of this case two times. Thus, in full view of the whole purport of the pleading in the above mentioned above, the defendant concluded a gas supply contract with the above 426 apartment units as between February 1, 1994 and December 6, 1998, respectively, with the above 320 apartment units' right to own and use the gas supply room of this case. However, as seen above, the defendant's assertion that the above apartment unit's right to own supply should be suspended at the above apartment unit's general meeting of occupants on June 8, 1999, and Eul's 1 through 320, and Eul's 326 apartment units' right to own the gas supply contract cannot be asserted as a result of a resolution of a majority of the above apartment units' right to own the gas supply contract even if the defendant concluded the above apartment unit's right to own after the above apartment unit's conclusion of the gas supply contract.

C. In addition, the Defendant established a gas supply room, etc. on the condition that gas is supplied to the above apartment until the life expectancy of the gas storage tank in this case between the non-party company and the non-party company. If the plaintiffs violated the conditions, the owner of the gas supply room in this case, etc. shall be the defendant, and the plaintiffs cannot seek delivery of the gas supply room in this case. However, although the defendant and the non-party company did not have the above agreement, the defendant's assertion cannot be asserted against the plaintiffs, who are not parties to the agreement, is groundless

4. Conclusion

Therefore, the plaintiffs' claim of this case is justified, and the judgment of the court below is just, and the defendant's appeal against the plaintiffs is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Shin Young-chul (Presiding Judge) Kim Jong-dong