Han (Attorney Choi-soo, Counsel for the plaintiff-appellant)

Park Dong-dong et al. (Attorneys Park Dong-soo et al., Counsel for the plaintiff-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 on the building No. 101 of the 7th, South-dong apartment commercial building (hereinafter referred to as the “instant commercial building”) located in the 647 Jeju-dong, Nam-dong, Seoul-dong, which is the 647 Jeju-dong. The enforcement officer shall publicly announce the purport of the order in an appropriate

1. Basic facts

According to the records, the following facts are recognized.

A. The applicant is operating a real estate brokerage business under the trade name of the central real estate agent in 104 of the first floor of the instant commercial building.

B. On January 21, 2002, the respondent Park Dong-dong operated the real estate brokerage business with the trade name called the real estate center from June 24, 2003 to the respondent, after completing the registration of ownership transfer on the 1st floor 101 of the commercial building in this case.

2. Applicant's assertion

The applicant asserts the following facts and the respondent continues to operate the real estate brokerage business of the first floor of the commercial building of this case, there is a concern that the applicant who is operating the real estate brokerage business of this case will already suffer an irrecoverable and significant loss, and thus, the applicant is urgently seeking a provisional disposition such as the purport of the application to avoid this.

A. Although Newdong 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 store is able to exclusively engage in the said 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 has been effective against the respondent pursuant to Article 42 of the same Act, so the respondent may seek a prohibition of business against

3. Determination

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

According to the records, the new Dong-dong Construction Co., Ltd, in selling the commercial buildings of this case, only designated and sold as living facilities and purchasing facilities, but did not designate the type of business, there is no evidence to acknowledge 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. In light of 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

On the other hand, since there are 7 stores in this case, the commercial buildings in this case are subject to sectional ownership. Therefore, 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, 7 persons, such as Park Chang-gu, Gaok, Park Young-gu, Park Young-gu, Park Young-gu, Park Young-gu, Park Young-hee, Park Jong-hee, Park Ho-hee, Park Ho-hee, Park Ho-hee, Park Jong-hee, etc., prepared and signed the rules of the 7th commercial building conference around 1996, but only seven persons were the sectional owners of the building of this case at the time of Song Young-gu, Park Young-hee, Park Jong-hee, Park Jong-hee, Park Jong-hee, Park Jong-hee, Park Jong-hee, Park Jong-hee, Park Jong-hee, etc., and there is no explanation as to the fact that he received legitimate authority to establish the rules from the sectional owners of the building of this case at the time, and there is no indication as to the fact that he was delegated the sectional owners of the building of this case with the authority to establish the regulations (the applicant for the sale of this case at around 196 and the change in the title of the management body of this case).

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, it can be recognized that Park Chang-gu, Kim Dong-dong, Jeon Young-dong, Hong-gi, the applicant, Jeongnam-dong, and Gook-si, the tenant of the building of this case, revised Article 4 (2) of the 7th commercial conference rules prepared on March 27, 1993. However, unless there is any explanation as to the fact that Kim Dong-dong and Hong-dong are not the sectional owner of the building of this case, and they are legally delegated voting rights from sectional owner, the above amended rules of the Respondent are merely the amended rules of the management body which affect the respondent's effect.

4. Conclusion

Thus, the order of the court below which 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)