In calculating the number of sectional owners entitled to convene a temporary management body meeting under Article 33(4) of the Act on the Ownership and Management of Aggregate Buildings, if one person owns several sections of an aggregate building in the aggregate building, whether one person shall be deemed a sectional owner (affirmative)

Article 33 (4) of the Act on the Ownership and Management of Aggregate Buildings

Written balmpirity management body

Defendant

Busan District Court Decision 2015Na15297 Decided June 3, 2016

The judgment of the court below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 33(4) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”) provides that “at least 1/5 of the sectional owners may convene a management body meeting if no manager exists. This quorum may be mitigated by regulations.” Considering the fact that the aforementioned provision provides that a sectional owner may convene a temporary management body meeting, if one person owns several sectional owners within the aggregate building in calculating the number of sectional owners entitled to convene a temporary management body meeting, it shall be deemed as one sectional owner.

2. According to the record, it is recognized that three persons, such as Nonparty 2 and Nonparty 3, who own five defense rooms, among the 46 units of the entire building in the instant aggregate building, owned by Nonparty 1, 11, and two defense rooms, demand the convocation of an extraordinary general meeting of the management body concerning the instant aggregate building, and accordingly, the resolution was adopted to appoint Nonparty 1 as the Plaintiff’s representative, on December 5, 2014.

In the lower judgment, the Defendant: (a) pursuant to Article 33(4) of the Aggregate Buildings Act, at least 1/5 of the sectional owners may convene a meeting of the managing body if there is no manager; (b) at least 1/5 of the sectional owners may convene a meeting of the managing body; (c) pursuant to Article 34(1) of the Aggregate Buildings Act, only 3 sectional owners, who are less than 1/5 of the sectional owners, convened a meeting of the managing body; and (d) notified each sectional owner of the purpose of the meeting at least one week prior to the meeting of the managing body; and (e) the Plaintiff issued a notice of convening an extraordinary general meeting of December 3, 2014, which is the two days prior to the extraordinary general meeting of the managing body, to Nonparty 4, who is one of the sectional owners, appointed Nonparty 1 as the Plaintiff’s representative; and (e) the instant lawsuit was instituted by a non-representative owner, and thus, the

In such a case, the lower court should have determined whether the said three sectional owners calculated several sectional owners as one sectional owners in accordance with the foregoing legal doctrine and examined whether the said three sectional owners were several sectional owners at the time of convening the extraordinary general meeting of the management body on December 5, 2014, and whether the said three sectional owners were responsible for convening the extraordinary meeting of the management body under Article 33(4) of the Aggregate Buildings Act, or whether the requirements for the quorum to be mitigated than the quorum requirements stipulated in the regulations of the management body of the instant aggregate building are met, or if the said regulations stipulate the quorum requirements to be mitigated than the quorum requirements stipulated in the said regulations, the lower court should have determined whether the extraordinary meeting was legitimately convened as of December 5, 2014.

Nevertheless, the lower court rejected only the Defendant’s second main defense without making any judgment on the Defendant’s first main defense by omitting the deliberation and judgment on this issue.

The judgment below erred by misapprehending the legal principles on the requirements for convening a temporary meeting of the managing body, thereby omitting the judgment on the first main safety resistance of the defendant, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)