205 Gohap13869 Nullification of resolution of the council of occupants' representatives

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Seoul Yangcheon-gu Seoul Metropolitan Government Wooddong

Attorney Park Jong-sung, Counsel for the defendant-appellant

The △ Complex apartment apartment council of occupants' representatives

Seoul Yangcheon-gu

Representative △△△△△

May 12, 2006

June 2, 2006

1. From among the resolution adopted by the council of occupants' representatives (No. 10th, No. 11th) on May 12, 2004, the part that "50% of the expenses incurred in replacing or remodeling an elevator is used from the reserves for long-term repairs" is invalid.

2. The costs of the lawsuit shall be borne by the defendant.

The order is as set forth in the text.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the pleadings in each of the statements in Gap evidence of 1 to 9 (including branch numbers, if there are branch numbers), Gap evidence of 13, Gap evidence of 14, Eul evidence of 14 and Eul evidence of 1 to 14.

A. The Defendant is an organization consisting of the representatives of the instant apartment occupants in order to promote the common interest of the instant apartment occupants and to secure a good residential environment in managing and using the apartment houses, incidental facilities, and their sites within the woodendong apartment complex located in Yangcheon-gu Seoul Metropolitan Government (hereinafter “instant apartment complex”), and the Plaintiff is also the owner and occupant of the instant apartment building No. 1 and the occupant of the instant apartment building No. 2.

B. The apartment of this case was completed on September 5, 1986, and 15 high-rise apartment units and 1248 households, each of which was installed, and 21 low-rise apartment units (the above 536 apartment units belong to them), and 600 households (the above 536 apartment units are not installed; hereinafter referred to as low-rise apartment units) are composed of one complex.

C. Article 47(2) of the previous Rules on the Management of Multi-Family Housing of the apartment of this case stipulated that the cost of replacing an elevator shall be borne by the user. However, the defendant representative meeting was July 2002.

9. As a person: “All expenses for inspection, repair, new replacement, etc. of an elevator shall be borne only on the high floor in accordance with the provisions of Article 38 of the above Code; ② the burden of electricity on an elevator shall be apportioned equally from the third floor except for the first and second floors for high-rises. ③ The payment of the loyalty for the repair and new replacement of an elevator shall be imposed only on a high-rises, with the exception of the first and second floors, and from the seventh day of July 2002, with the resolution that the management expenses for the replacement reserve was imposed only on the high-rises household.”

D. After that, on May 12, 2004, the defendant representative meeting held the representative meeting of this case No. 11 on May 10, 2004 and passed a resolution with the consent of 17 representatives that "50% of the expenses incurred in replacing or remodeling an elevator (not less than 3 stories, and 50% of the expenses incurred in replacing or remodeling an elevator) is borne by the user (not less than 3 stories, with the consent of 50%)," and the above amendment bill was implemented by the consent of 17 representatives (hereinafter referred to as the resolution of this case) with respect to the whole written consent of the occupants (a majority of 1,079, 6 households, low-rises: 51 percent of the total households, such as 485 households, all households, including 1,51 households, opposite to 485 households, etc., which were implemented by the consent of 60% of the above amendment, but against the contrary 36% of the amendment procedure).

Management expenses in the name of the elevator replacement reserve, which has been imposed on a high-rise household, have been reduced to the amount of long-term repair appropriations to be diverted to the replacement cost of the elevator.

E. The defendant representative meeting again decided on March 30, 2005 that Article 47(2) of the above Management Rule is in violation of Article 215 of the Civil Act and Article 51 of the Housing Act, and tried to abolish the above elevator replacement allowance which was imposed on a high-rise household, and to abolish the above elevator replacement allowance which was imposed on the high-rise household, but the defendant representative without the resolution of the council of occupants' representatives, at will, imposed on the high-rise household from April 2005 on the management expenses for the above elevator replacement allowance under the name of the elevator replacement allowance.

2. The parties' assertion

A. The plaintiff's resolution of this case brought about a result of imposing the costs of repair and replacement of an elevator jointly owned by only the sectional owners of a high-rise household to the owners of a low-rise household, and thus is null and void as it unfairly infringes on the property rights of the owners of a low-rise household. In addition, the resolution of this case has a special effect on the rights of the owners of a low-rise household. Thus, it is null and void since it did not obtain the consent of the owners of a low-rise household under Article 29 (1) of the Act on the Ownership and Management of Aggregate Buildings

B. The apartment of this case by the Defendant is composed of 21 households of low-rises and 600 households of high-rises and 1248 households of high-rises of 15,00,000,000 households of 174 and 186,000 square meters of the total area of the apartment site, excluding the commercial part among the entire site area, are merely 60,580 square meters of the site area (35% of the total area). On the other hand, the aggregate of the site possession area of low-rises of apartment is 13,00 square meters of the entire apartment site area of this case and about 54% of the total building area of this case is 13,00 square meters of 23,000 square meters of 869,37,000 square meters of the entire apartment site area of this case. Accordingly, the elevator is able to lead a pleasant life of low-rises of this case by raising the share of low-rises of this case.

3. Determination

(a) Article 2 (Definition) subparagraph 4 of the related provisions of the Aggregate Buildings Act (1) : The term “section for common use” means the part other than the section for exclusive use, the accessory to the building which does not belong to the section for exclusive use, and the accessory to the building which has become the section for common use pursuant to Article 3 (2) and (3);

(2) Article 3 (Section 1): Corridors, stairs, and other sections that lead to several sections for exclusive use, which, in structure, are provided for the common use of all or some of the sectional owners, shall not be the object of sectional ownership. Paragraph 2 of this Article: the section of the building and the annex building provided in Article 1 or 1-2 may be the section for common use by regulations.

Paragraph 3: The owner of the whole section of the building or the annex building under Article 1 or 1-2 may determine by notarial deeds an amount equivalent to the regulations under paragraph (2). (3) The section for common use belongs to the co-ownership of all sectional owners: Provided, That the section for common use (hereinafter referred to as the "part for common use") that is obviously provided only to the public use by some sectional owners belongs to the co-ownership of their sectional owners. (4) Article 14 (Management of Part for common use): Matters related to the interests of all sectional owners among the matters concerning the management of the section for common use, and those prescribed by the regulations under Article 29 (2) shall be determined by resolution of the assembly of all sectional owners, and the other matters shall be determined by resolution of the assembly of only the sectional owners who will be public use, respectively.

(5) Article 28 (Rules): Matters between sectional owners regarding the management or use of building, site and annex facilities which are not provided for in this Act, may be determined by regulations.

(6) Article 29 (Establishment, Amendment, and Abolition of Regulations): The establishment, amendment, and repeal of regulations shall be done at the managing body's meeting with the consent of not less than 3/4 of both sectional owners and voting rights. In such cases, if the establishment, amendment, and repeal of regulations has a special effect on some sectional owners' rights, the consent of those sectional owners shall be obtained.

B. Determination

When several sections into which one building is divided in structure can be independently used, each section of exclusive ownership may be established for the purpose of each ownership. However, the section of exclusive ownership, other than the section of exclusive ownership, and the appurtenances to the building that does not belong to the section of exclusive ownership, and the annex to the section of common use pursuant to Article 3 (2) and (3) of the Aggregate Buildings Act shall belong to either the section of exclusive ownership, or to the co-ownership of the sectional owners who are in the building, and those who are not the sectional owners shall not acquire the ownership of the section of exclusive ownership.

In the case of the apartment of this case, an elevator is installed only on a high-rise apartment, so this is the co-ownership of the sectional owners in the same building for the high-rise household, and as alleged by the defendant, the high-rise household and low-rise household are mixed, and even if low-rise household occupy the building area at a ratio higher than their own building area ratio due to the high-rise household's high-rise household's high-rise household's high-rise household's high-rise household, the whole sectional owners of the apartment of this case

It can not be said that it can not be said.

However, the resolution of this case was adopted by the resolution that 50% of the replacement cost of an elevator, which is the common property of a high-rise household, should be used from the long-term repair appropriations paid by all sectional owners of the apartment of this case, including low-rises, because it constitutes a modification of the regulations that have special influence on the rights of the owners of low-rises, which are some sectional owners, under Article 29(1) of the Multi-Family Building Act, even though the consent of the owners of low-rises was obtained in accordance with Article 29(1) of the Multi-Family Building Act, so the resolution of this case

4. Conclusion

Thus, the resolution of this case is null and void, and as long as the defendant contests it, there is a benefit to seek confirmation, the plaintiff's claim of this case is justified.

Judges Kim Jong-young

Judges Kim Jae-ho

Judges Kim Jong-ok