[1] In a case where the structural division of a part of a sectioned building registered as a sectioned building ceases to exist, whether the ownership of a part of the building corresponding to such sectioned building (=ownership of the title holder of the previous sectioned building) and whether the entire building consisting of the remaining part of the building and the remaining part of the building is subject to the former Act on the Ownership and Management of Condominium Buildings (affirmative)

[2] The procedure for establishing a management body under Article 23(1) of the former Act on the Ownership and Management of Aggregate Buildings and the method for determining the person who exercises voting rights at a management body meeting where the section of exclusive ownership belongs to several co-ownership

[1] Where a building registered as a sectioned at the time of the enforcement of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter “Aggregate Buildings Act”) loses its structural independence and it cannot be established as a sectional ownership of the building, the registered titleholder is a co-owner of one building to which the building belongs (see Article 5 of the Addenda to the Condominium Buildings Act, enacted by Act No. 3725, Apr. 10, 1984). Likewise, where structural division becomes extinct between parts of a sectioned building registered as a sectioned building, the part of the building corresponding to the sectioned building shall be the co-ownership of the registered titleholder of the previous sectioned building. However, as the remaining sectional ownership rights of the sectioned building whose structural independence has not been lost are maintained, it is reasonable to view that the remaining parts of the building are independent of the remaining parts of the sectioned building, and as a matter of course, it is reasonable to view that the remaining parts of the aggregate building can be shared as part of the building.

[2] Article 23(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter “the Aggregate Buildings Act”) provides that “If a sectional ownership relationship with respect to a building is established, sectional owners shall form a management body which aims at the management of the building and its site and its accessory facilities as all members of the sectional owners.” Such management body is not an organization established only through an organizational act but, if a sectional ownership relationship is established, it is naturally established with respect to the building. It is an organization formed with sectional owners as members of all the sectional owners. If it conforms to the purport of Article 23(1) of the same Act, a management body, regardless of its form or name, can play a role as a management body. Article 37 of the Aggregate Buildings Act provides that the voting rights of sectional owners shall comply with the ratio of the area of the section for exclusive use in the absence of special provisions by the regulations, joint owners shall exercise their voting rights at the management body’s meeting (Article 15(2).

[1] Article 1 of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 2010); Article 5 of the Addenda (Amended by Act No. 10204, Apr. 10, 1984) / [2] Articles 23(1) and 37 of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 2010); Article 265 of the Civil Act

[1] Supreme Court Decision 2006Da16499 Decided August 25, 2006 / [2] Supreme Court Decision 94Da27199 Decided August 23, 1996 (Gong1996Ha, 2797) Supreme Court Decision 2007Ma1734 Decided March 27, 2008 (Gong2008Sang, 621)

Cheong Han-gu, Cheong-do,

Defendant

Seoul Central District Court Decision 201Na41078 Decided December 15, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central 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. Although the parts of a building located on some floors of an aggregate building do not have the structural independence, there is no clear Supreme Court precedent as to the management authority or method concerning the aggregate building in which many people have divided the indications for each part of the building and completed their respective registrations, and several small claims cases, etc. are pending in lower courts, etc., and the lower courts' judgments are divided as to the conclusion thereof. Therefore, even though the instant case constitutes small claims and does not meet the requirement of "when a decision contrary to the Supreme Court's precedents has been made," it is judged as to the error of interpreting and applying the substantive law in terms of performing the intrinsic function of the Supreme Court's interpretation and application of statutes (see, e.g., Supreme Court Decision 2006Da50420, Dec. 11, 2008).

2. A. Article 1 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter “the Act on the Ownership and Management of Aggregate Buildings”) provides that “If several sections of one building could be independently used as independent buildings, each section may be the object of ownership under the conditions as prescribed by this Act.”

However, if a part of one building is to be the object of sectional ownership, it must be independent from other parts in structural structure or use. There may be differences in structural independence depending on the situation of use or use. However, structural independence is required mainly because the scope of physical control over the objects of ownership is needed to be clarified. Thus, in a case where the scope of the object of sectional ownership cannot be determined by structural division, it cannot be said that the object of sectional ownership cannot be established. Since part of the building that does not meet physical requirements as the object of sectional ownership can not be registered as an independent sectional building under the building management ledger, even if it is registered as the object of sectional ownership, the above registration is null and void by itself even if it is registered as the object of sectional ownership on the register, and if it is not consistent with the provisions of Article 16 of the Act because the building registered as the object of sectional ownership loses its independence at the time of entry into force of the Act, the remaining part of the building belongs to the owner of the sectional ownership and the remaining part of the building can be seen as a co-owner of the Act (see Article 206 of the Act).

B. Examining the facts acknowledged by the lower court in light of the record, the following facts are revealed.

(1) Before around 1980, the clean shopping mall located in Seongbuk-gu, Seongbuk-gu, Seoul (Land Number omitted) (hereinafter “instant shopping mall”) was newly built with the 1st underground floor and the 5th ground floor.

(2) The commercial building of this case is classified by each unit (in the case of the third floor, 301, 302, 303, 305, 306, 307, 308, and 309-8 stores) from the underground floor to the third floor, and the fourth and fifth floors are classified by floor and registered in the collective building register and each registration of ownership preservation has been completed, and ownership transfer has been made after the registration of ownership transfer. However, the above registration is not divided into the section for exclusive use and the section for common use, and the building site of Seongbuk-gu Seoul, Seoul, which is the site for the building, is owned by the owners of the commercial building of this case, and the site of this case is not registered.

(3) On the other hand, around 195, around 1995, repair works, such as the replacement of electric lines due to fire, etc. that occurred from the excessive use of electric power by shop occupants were removed most of the underground floors and the first and second floors among the instant commercial buildings.

(4) At present, each shop of the third floor is being used for maintaining the same classification as before. The fourth and fifth floor was all viewing assembly facilities (e.g., wedding hall) at the time of initial registration and around December 22, 2008, the fourth floor was the first class neighborhood living facilities (public bath), the fifth floor was changed to the first class neighborhood living facilities (public bath) and the first class neighborhood living facilities (user), and is used for making soup. However, there is no distinction between the first and second floors at the time of new construction.

C. Examining the above facts in light of the legal principles as seen earlier, as the walls or facilities to divide the underground floors and the first and second floors (hereinafter “the low floor parts of this case”) among the commercial buildings of this case are removed, the sectional ownership becomes extinct, and the sectional ownership is changed to co-ownership. However, the commercial buildings of this case, including the sections located in the third and fifth floors and the low floor parts, can be subject to the Act on the Ownership and Management of Aggregate Buildings.

3. A. Article 23(1) of the Aggregate Buildings Act provides, “If the relationship of sectional ownership is established with respect to a building, sectional owners shall form a management body with the objective of carrying out the business relating to the management of the building and its site and its accessory facilities as all the sectional owners.” This management body is not an organization established only through any organizational act, but if there is a building which is established under sectional ownership, it is naturally established with all the sectional owners as members. If it is an organization composed of sectional owners and it conforms to the purport of Article 23(1) of the aforesaid Act, it may act as a management body regardless of its existence form or name (see Supreme Court Decision 94Da27199, Aug. 23, 1996).

In addition, Article 37 of the Act on the Ownership and Management of Aggregate Buildings provides that the voting rights of the sectional owners shall be based on the ratio of the area of the section for exclusive use, unless otherwise expressly provided by the regulations, while the co-owners shall designate one of the co-owners as the person who shall exercise voting rights at the managing body's meeting if the section for exclusive use is jointly owned by several persons (Article 2). Therefore, the co-owners of the section for exclusive use shall designate one of the co-owners as the person who shall exercise voting rights at the managing body's meeting by mutual consultation, and if the agreement is not reached, a person who shall exercise voting rights by a majority of the co-owners pursuant to Article 265 of the Civil Act on the management of the jointly-owned property or a person who has the majority of the share of the co-owners as the

B. Examining the facts acknowledged by the court below in light of the records, ① the owners of the commercial building of this case were divided into six floors by establishing a management committee for the owner of the commercial building of this case, and the representatives selected by each floor constituted the plaintiff in charge of the maintenance and management of the commercial building of this case and prepared the rules and management rules around January 1, 2006. The council rules set forth the name of "the vice-chairperson" as the representative who is currently operating on each floor (the sectional owners were elected and exercising the representative authority at the present, and the representative is called the "the vice-chairperson". ② the plaintiff was responsible for the management of the commercial building of this case, such as collecting management expenses from around that time, ② the occupants of the commercial building of this case, including the defendant, were paid management expenses for the building of this case to the plaintiff. ③ The tenant of the commercial building of this case, who was dismissed from the vice-chairperson of the plaintiff, was notified of the change of the management expenses for the commercial building of this case to the tenant of this case, and the tenant of this case was notified to the tenant of this case about 1010.

C. Examining the aforementioned circumstances in light of the legal principles as seen earlier, such as the details of the Plaintiff’s composition, association rules, and management rules, and the Plaintiff’s conduct, (1) the owners of the instant commercial building are able to be classified by floor, taking into account the current status of the instant commercial building and the status of sectional ownership, and managing the building by separating the sectional ownership or co-ownership right holder by floor and managing the building, and (2) the Plaintiff was formed for the integrated management of the instant commercial building. (2) As seen earlier, in the instant low-rise portion, unlike other sections of the building, the Plaintiff is in co-ownership relation, and as such, the co-ownership owner is deemed to have appointed a representative by the floor representing the co-owned relation by floor, and thus, it is consistent with the purport of the Act on the Ownership and Management of Aggregate Buildings, which provides for the exercise of voting rights in the above sections of the building, and therefore, it can be deemed that the representatives of the sectional ownership right holder and the management method of the instant commercial building were actually managed by the sectional ownership holder.

Nevertheless, the court below rejected the Plaintiff’s claim for unpaid management expenses against the Defendant on the ground that there was no proof of legal basis such as management right or delegation to maintain and manage the instant commercial building, it is reasonable to view that there was an error of law by misapprehending the legal principles as to the management method of a building that part of the aggregate building did not have independence

4. 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 Shin Young-chul (Presiding Justice)