[1] In a case where there is a building in which sectional ownership is established, whether a management body can establish or modify the regulations on restrictions on the business of a building, as a matter of course, it is established with all sectional owners as members (affirmative), and whether a buyer who failed to obtain the registration of ownership transfer due to the circumstances of the seller, even though he/she paid the sale price in full, may exercise his/her voting right (affirmative)

[2] The case holding that where some of the persons who exercised voting rights in the enactment and amendment of the business classification restriction of a commercial building is the buyer who failed to complete the registration of transfer of sectional ownership or failed to complete the sale price in full, the above resolution of the commercial building which failed to meet the quorum, unless it cannot be deemed that they were duly authorized by the sectional owners of the commercial building to establish the management organization's regulations, shall not be effective as the management organization's regulations

[1] A management body capable of establishing or amending the regulations on restrictions on the business of a building is not an organization established only through an organization but a building established by sectional ownership is established by all sectional owners as a matter of course, and its voting rights are exercised by all sectional owners. Here, a sectional owner refers to a person who has acquired sectional ownership (the person registered as a sectional owner on the register of registry). However, if special circumstances exist, such as where a person fails to obtain the registration of ownership transfer due to the reasons on the part of the purchaser even though he paid the sale price in full, such a buyer shall be deemed as a sectional owner and may exercise his voting rights as a member of the management body.

[2] The case holding that where some of the persons who exercise voting rights in the enactment and amendment of the regulations on the restriction on the category of business of a commercial building is the number of persons who did not fully pay the sectional ownership purchaser and the sales price, the above rules of the commercial building which fall short of the quorum shall not be deemed effective as the management organization's regulations, unless they cannot be deemed to have been duly authorized by the sectional owners of the commercial building to establish the management organization's regulations

[1] Articles 23(1), 28(1), 29(1), and 41(1) of the Act on the Ownership and Management of Aggregate Buildings / [2] Articles 23(1), 28(1), 29(1), and 41(1) of the Act on the Ownership and Management of Aggregate Buildings

[1] Supreme Court Decision 94Da49687, 49694 delivered on March 10, 1995 (Gong1995Sang, 1590), Supreme Court Decision 94Da27199 delivered on August 23, 1996 (Gong1996Ha, 2797), Supreme Court Decision 97Da19625 delivered on August 29, 1997 (Gong1997Ha, 2879), Supreme Court Decision 2002Da45284 delivered on December 27, 2002 (Gong2003Da45496 delivered on November 10, 205)

[Judgment of the court below]

Other than 1 et al.

Seoul High Court Decision 2003Ra578 decided May 18, 2004

The reappeal is dismissed.

The grounds of reappeal are examined.

1. On the first ground for appeal

In light of the records, the court below's rejection of the application for provisional disposition of this case by the re-appellant who seeks to prohibit the same kind of business on the premise that the business type of the store of this case is not overlapped at the time of the above sales contract is designated, is just, and there is no error of law such as misconception of facts against the rules of evidence or misunderstanding of legal principles as to the establishment and validity of the agreement on the restriction of the type of business of the commercial building, as argued in the Grounds for Appeal.

2. On the second ground for appeal

2. The non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 2 were established under the non-party 1 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 2 were established under the non-party 1 and the non-party 1 and the non-party 1 and the non-party 2 were the non-party 9 and the non-party 1 and the non-party 2 were the non-party 1 and the non-party 2 were the non-party 9 and the non-party 1 and the non-party 1 and the non-party 1 were entitled to exercise their voting rights.

Although the reasoning of the court below is somewhat insufficient, it is just for the court below to have the same purport, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to the establishment and validity of trade restriction agreements in commercial buildings, as alleged in the grounds of appeal.

In addition, the Re-Appellant's argument that the management or use of the commercial building can be determined by the separate rules or rules that are not the regulations of the management body under the Act, and that the authority to establish or modify such regulations or rules exists not only for the sectional owners of the commercial building but also for the lessee cannot be accepted as it is merely an independent opinion.

3. On the third ground for appeal

The grounds alleged by the re-appellant alone cannot be deemed to have explicitly consented to the above 7th commercial set forth in the commercial set forth above, and there is no other evidence to acknowledge it. Therefore, the above ground of appeal is without merit.

4. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)