New Zealand department department (Law Firm Jeong-dong, Attorney Cho Yong-han, Counsel for the defendant-appellant)

Defendant (Attorney Lee Chang-soo, Counsel for defendant-appellee)

November 27, 2008

1. The defendant shall pay to the plaintiff 107,037,90 won with 5% interest per annum from May 20, 2008 to December 18, 2008 and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 160,479,900 won with 20% interest per annum from the day following the delivery of a copy of the complaint to the day of complete payment.

1. Basic facts

A. The Plaintiff is a management body composed of all sectional owners pursuant to the Act on Ownership and Management of Condominium Buildings for the management and operation of the site and buildings of New Cocoinadong department stores (hereinafter “the instant department department stores”) located in Seocheon-gu, Seocheon-gu, Seoul. The Defendant completed the registration of ownership transfer on April 4, 2002 with respect to No. 712 and No. 785 among the stores located in the said department department stores.

B. According to the Plaintiff’s management rules, a sectional owner has a duty to bear all costs, such as management expenses, publicity expenses, etc. incurred in the maintenance, management of a building and revitalization of a commercial building (Article 6). A sectional owner has the same obligation that a sectional owner bears according to the relevant laws and regulations, and the resolution of the assembly of the management body (Article 9), and obligations, such as management expenses, public relations expenses, etc., borne by the sectional owner and the possessor against the management body or the manager, are jointly and severally liable for such obligations (Article 10).

C. From February 1, 2004 to April 30, 2008, the Defendant did not pay a total of KRW 160,479,90,00 for the management expenses and late payment charges equivalent to KRW 146,843,60 for the above store 712 (in this case, the late payment management expenses from January 2006 are KRW 79,401,60), and from April 1, 2003 to April 30, 208, the Defendant did not pay KRW 160,479,90 for the above store 785, including unpaid management expenses and late payment charges.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1 to 33, Gap evidence 3-1 to 33, Gap evidence 4 and 10, and the purport of the whole pleadings

2. Determination on the defense prior to the merits

In accordance with the Act on the Ownership and Management of Aggregate Buildings, the Defendant’s management covenant shall be established with the consent of at least 3/4 of both sectional owners and voting rights. In the case of a written resolution, consent of at least 4/5 of both sectional owners and voting rights should be obtained, and failing to meet the above requirements, the above management covenant is inappropriate. Therefore, the Plaintiff’s representative, Nonparty 1 (non-party to the judgment of the Supreme Court) elected pursuant to the above management covenant, has no power of representation, and thus, the lawsuit of this case is unlawful.

In full view of the statements and the purport of Gap evidence No. 22-1 through No. 23 and Gap evidence No. 23-1 at the time of August 2002, 1,832 among the 2,284 sectional owners of the department stores of this case as of August 2, 2002, 40,880.587 square meters of voting rights (80.21% of sectional owners, 90.72% of voting rights) were established by giving written consent (the sectional owners, 80.21% of voting rights). The above management rules stipulate that the manager is elected at the management body meeting with the consent of a majority of all voting rights (Article 41(1) of the Regulations), and that the non-party 1 was elected with the consent of a manager with the consent of 63.27% of all voting rights. In full view of the facts that the management body of this case was lawfully elected with the consent of the non-party 1 and the non-party 27 voting rights of this case, each of this case.

The defendant argues that when one of the sectional owners owns a large number of stores, it shall be calculated as one sectional owner, but the sectional owner is a concept corresponding to the sectional ownership, and the Act on the Ownership and Management of Aggregate Buildings is a law to regulate the interests among the sectional owners on the basis of several replacements in one building, and it is reasonable to calculate the number of sectional owners by sectional ownership. Therefore, the defendant's assertion is without merit.

In addition, the defendant asserts that the legitimacy of the manager should be determined on the basis of whether the majority of the sectional owners and voting rights agree in accordance with the Act on the Ownership and Management of Aggregate Buildings. However, in the event that there are legitimate regulations of the management body, the intent of the management body meeting is sufficient to pass a resolution in accordance with the regulations (Article 38(1) of the Act). Therefore, the above argument is without merit.

3. Judgment on the merits

A. Determination on the cause of the claim

According to the above facts of recognition, the defendant is obligated to pay the plaintiff the total unpaid management expenses of KRW 160,479,90 and the delay damages thereof, except in extenuating circumstances.

B. Judgment on the defendant's assertion

(1) The Defendant asserts that the department store of this case is a commercial building to which the Distribution Industry Development Act applies, and the management organization organized by the management entity in the form of a corporation pursuant to Article 12(2)2 of the same Act, or by the management organization organized by the management entity with the consent of two-thirds or more of the shop occupants, shall be qualified as a corporation within six months. Since the Plaintiff failed to meet the above requirements for the superstore operator, it cannot perform the management business of the department store of this case, and therefore, the Defendant has no authority to

The management body established under Article 23(1) of the Act on the Ownership and Management of Aggregate Buildings is not an organization established only through any organizational act, but in the case of a building on which sectional ownership is constituted, as a matter of course, if the sale of an aggregate building is commenced and occupancy is made and the joint management is required, a management body consisting of all sectional owners. Meanwhile, in the case of a large scale commercial building, such as a department store, large discount store, etc., the Distribution Industry Development Act was established to efficiently manage a superstore by regulating interests between sectional owners, shop occupants, consumers, etc. However, the Act on the Ownership and Management of Aggregate Buildings does not stipulate that the application of the Act on the Ownership and Management of Aggregate Buildings, which requires the management of an aggregate building to be conducted through a management body consisting of all sectional owners of the distribution industry (Article 12(4) of the Distribution Industry Development Act provides that matters related to sectional ownership among the business of a superstore, shall be governed by the Act on the Ownership and Management of Aggregate Buildings. Therefore, even if the department store of this case falls under a superstore under the Distribution Industry Development Act, the Plaintiff’s claim is without merit.

(2) In addition, the defendant asserts that the management expenses in this case are unfairly excessive since the plaintiff did not present the criteria for calculating the management expenses in detail, and is uniformly imposing the fixed management expenses.

The management expenses for the 7th floor where the defendant's store is located, among the department stores of this case, are imposed on and collected from the 7th floor tenants of each of the above 7th floor, and the difference between the actual management expenses and the management expenses to be paid to the plaintiff was paid in the form of the above Korean arms and retail company. Since the Korean arms and retail company did not pay the management expenses for the 7th floor stores from May 2002, it is recognized that the plaintiff imposed a fixed amount management expenses in the same way as the previous ones while directly collecting the management expenses for the 7th floor stores from around May 2002, while the management expenses for the above 1 to 33th unit, Gap evidence No. 3-4, Gap evidence No. 7-1 to 3, Gap evidence No. 12-15, Gap evidence No. 18, Gap evidence No. 19-1 to 20, and each of the above 21 units can not be acknowledged as the management expenses for the exclusive use areas.

(3) On November 2005, the Defendant asserted that there was an agreement between the Plaintiff and the Plaintiff on the reduction of KRW 60,197,600 in management expenses, which the Defendant had been delinquent at the time, to KRW 25,000,000, as to subparagraph 712 of the said store. In full view of the entries and the overall purport of the arguments in the evidence Nos. 1 and 2, the Plaintiff may recognize the fact that around December 14, 2005, the Plaintiff agreed on the reduction of KRW 60,000,000 in total management expenses, which the Defendant had been delinquent at the time, to KRW 25,00,000, which had been delinquent at the time, around December 14, 2005. As such, the Defendant’s allegation on the said reduction has merit.

Furthermore, the defendant asserts that since the defendant's remaining 25,00,000 won out of the above reduced 25,000,000 won was paid in lump sum to the plaintiff and the remaining 15,00,000 won was paid in 10,000 won per month by the non-party 2 who leased the above 712 from the defendant, and the remaining amount was paid in 1,00,000 won per month by the plaintiff, and the remaining amount was paid in full to the defendant. In full view of the above evidence and the purport of the whole arguments, the plaintiff and the defendant, as well as 15,00,000 won out of the reduced 25,00,000 won, 10,000 won out of the above 712 of the rent to the defendant, and 200,000 won out of the remaining 10,000 won, 200,000 won out of the rent to the plaintiff.

(4) The theory of lawsuit

Therefore, the defendant is obligated to pay the overdue management expenses for the store 712 from January 1, 2006, which was 14,000,000 won due to the above reduction agreement, the overdue management expenses for the store 712 from January 2006, and the overdue management expenses for the store 785 from 13,636,30 won, and the overdue management expenses for the store 785, and the delay damages.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 107,037,90 won with 5% interest per annum from May 20, 2008 to December 18, 2008, which is the day following the delivery date of the application for modification of the purport of the claim and the cause of the claim, and 20% interest per annum from the next day to the day of complete payment. Thus, the plaintiff's claim is justified only within the scope of the above recognition, and the remainder of the claim is dismissed as it is so decided as per Disposition.

Judges Gangwon-gu (Presiding Judge)