(영문) 수원지방법원 2017.9.8.선고 2017가합10995 판결

1. The Defendants jointly pay to the Plaintiff 104,925 won and the amount equivalent to 5% per annum from September 30, 2016 to September 8, 2017, and 15% per annum from the next day to the day of full payment.

2. A. Defendant B performs the water leakage prevention work in such a way that he repairs the structural part between the balcony 1103 of the apartment building, such as the balcony floor No. 601, 1003, and the balcony floor No. 1103, the apartment building No. 1103, the apartment building No. 1103, the apartment building No. 1103;

B. The council of occupants' representatives of Defendant C apartments shall repair the entrance pipes of balcony C apartment 601, 1003, the balcony 1003, Jung-gu, Young-gu.

3. The plaintiff's remaining claims are dismissed.

4. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

5. The above paragraphs 1 and 2 can be provisionally executed.

Purport of claim

The Defendants shall jointly and severally pay to the Plaintiff 104,925 won and the amount equivalent to 5% per annum from February 19, 2016 to the service date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment. The Defendants shall pay to the Plaintiff 1,00,000 won per annum from the day after the service date of the original copy of the judgment of this case to the day when the above period expires to the day when the performance is not performed within one month from the service date of the original copy of the judgment of this case.

Reasons

1. Basic facts

A. The Plaintiff owned and possessed the Young-gu Seoul apartment (hereinafter referred to as "the apartment of this case") 601 1003 Dong 1003 (hereinafter referred to as "the Plaintiff apartment of this case"). Defendant B owned and occupied the same apartment of this case 1103 (hereinafter referred to as "the Defendant apartment of this case"), and Defendant C apartment council of occupants' representatives (hereinafter referred to as "the Defendant representative council") is an autonomous deliberative body organized pursuant to the Multi-Family Housing Management Act to determine important matters concerning the management on behalf of the occupants of this case.

B. On February 2016, the Plaintiff notified the Defendants of the water leakage in the part of the balconys of the Plaintiff apartment building. On April 20, 2016, the Defendant representative meeting passed a resolution on the agenda that the Defendant’s balcony land of the Defendant apartment building, the upper house, in relation to the water leakage in the balconys of the Plaintiff apartment building, should be regarded as the common area, and the Defendant’s representative meeting would have the equipment company employed to perform repair works.

C. The main contents of the instant apartment management rules are as follows.

Article 5 (Scope of Exclusive Use or Common Use Part) (1) is the space used solely by occupants, etc. in a household. (2) The common use part shall be the housing portion, incidental facilities and welfare facilities falling under each of the following subparagraphs except the exclusive use part under paragraph (1), and the scope thereof shall be as specified in attached Table 3.1. The common use part shall be managed at the expense of occupants, etc., and the facilities and common use part (liability, etc.) (1) where the occupants, etc. jointly use the building on the ground of the apartment, such as the corridor, stairs, and elevators of the building: the facilities and common use part (Liability, etc.) (2) where the occupants, etc. damage the exclusive use part or common use part of other occupants, etc. such as the apartment house by intention or negligence, the owner shall restore the original part or bear the expenses necessary for the repair thereof. (2) Where the occupants, etc. cause damages to the facilities or common use part owned or occupied by the occupants, etc., the management authority shall separately manage the exclusive use part under Article 78 (2) (3) of attached Table 5).2).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4 (including the number with each number; hereinafter the same shall apply), Eul evidence Nos. 9 and 10, or the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

The floor of the balcony floor of the Defendant apartment building and the floor space between the balcony floor of the Defendant apartment building and the balcony ceiling of the Plaintiff apartment building are exclusive parts of the Defendant apartment building. The land installed in the balcony floor of the Defendant apartment building is destroyed and flows out to the said space, and the water coming into the space between the Defendant apartment building’s balcony floor and the balcony ceiling of the Plaintiff apartment building, and the water was generated by water leakage in the balcony ceiling of the Plaintiff apartment building. The Plaintiff was interfered with the exercise of the Plaintiff’s apartment ownership due to the above water leakage, and the Defendant is liable to compensate the Plaintiff for damages caused by water leakage and water leakage.

The representative meeting of the defendant bears the duty to repair, maintain, and repair the common area of the apartment of this case pursuant to the Management Rules of the apartment of this case. The defendant representative meeting has neglected to take necessary measures, such as repairing the defective parts related to the water leakages generated from the plaintiff's apartment, and thereby, the plaintiff's damage was expanded. The defendant representative meeting is jointly and severally with the defendant B to compensate the plaintiff for the damage caused by water leakage and to repair the defect of the entrance pipe (a series of multi-unit houses) which is the common area.

Furthermore, the defendants are not performing the plaintiff's demand for the continuous performance of the duty to repair defects, and it is highly probable that they will not perform the duty voluntarily in the future, so it is necessary to make an indirect compulsory performance.

B. Determination of construction performance claims and damages claims against Defendant B

1) Determination on the request for construction performance

A) Comprehensively taking account of the expert evidence D and E’s appraisal results and the overall purport of the pleadings, ① damage to the balcony floor of the Defendant apartment building and water leakage was generated in the Plaintiff apartment apartment building balcony. ② The company employed by the representative association of the Defendant caused the land to be damaged in the process of repairing and removing the above land prices buried in the Defendant apartment balcony floor; ③ damage to the waterproof floor was also caused by the water leakage; ③ the land buried in the Defendant apartment balcony floor at present is being removed; ③ the land prices buried in the Defendant apartment balcony floor at present are being removed; in order to prevent the water leakage of the Plaintiff apartment balcony, the land prices should be installed again according to the design drawings; and the waterproof floor of the Defendant apartment apartment floor is also destroyed; and the water-proof apartment construction is to be performed after removing it and waterproofing. Accordingly, according to the above recognition that the Plaintiff’s exercise of the above apartment building caused damage to the Plaintiff’s land surface and the Plaintiff’s exercise of the apartment building.

Furthermore, the land price and floor waterproof floor filled in the defendant's balcony floor corresponds to facilities attached to the building, such as pipes installed in an exclusive part pursuant to subparagraph 3 of attached Table 2 of the Management Rules of the apartment building in this case, and the defendant Eul independently occupies and uses it, and if the defect occurred in that part, it may affect the following household units like this case. However, such circumstance alone cannot be deemed to have used the above land price and waterproof floor together with other households such as the next floor. Furthermore, even if the defendant's representative meeting considers the above part as a common area, the council of occupants' representatives cannot resolve matters contrary to the Management Rules of the apartment building in this case. Thus, it cannot be deemed that the nature of the above part is determined in accordance with the resolution of the Management Rules of the apartment building in this case, separate from the apartment building in this case. Thus, it is reasonable to deem that the above part of the land price and waterproof floor constitutes the exclusive part of the defendant's apartment building.

Therefore, in order to prevent water leakage generated from the plaintiff's apartment, Defendant B is obligated to perform water leakage prevention works by repairing the structural part between the plaintiff's balcony ceiling and the defendant's balcony floor and repairing the land price of the defendant's apartment building in order to prevent water leakage generated from the plaintiff's apartment.

B) On the other hand, Defendant B asserts that, on the other hand, the structural part between the floor of the balcony and the balcony of the Defendant apartment building was destroyed in the course of the Defendant’s representative meeting’s repair and removal of the land price. However, as seen earlier, the above structural part is the exclusive part of the Defendant B and the Defendant B’s management obligation. However, the above structural part is the exclusive part of the Defendant B and the Defendant B’s management obligation. However, under the permission of Defendant B, the representative meeting employed the above structural part in the process of the removal of the land. Even if the above structural part was damaged in the process of the removal of the land price, Defendant B may claim damages against the Defendant’s representative meeting or the above company, apart from the fact that the above structural part, which is the exclusive part of the Defendant B, is damaged, as long as the Plaintiff was interfered with the Plaintiff’s exercise of ownership over the Plaintiff’s apartment, Defendant B bears the repair obligation for the above structural part. Therefore, Defendant B’s above assertion is without merit.

2) Determination on the claim for damages

According to the facts acknowledged above, it is evident that Defendant B infringes upon the Plaintiff due to the above water leakage. Thus, Defendant B is the owner and possessor of the apartment house, and is obliged to compensate the Plaintiff for the damages caused by the water leakage phenomenon pursuant to Article 758 of the Civil Act.

Furthermore, according to the appraiser E’s appraisal results, it can be acknowledged that the above water leakage damages the part of the balcony of the plaintiff apartment building and requires repair works, such as double farming, etc., and the cost necessary for the performance of the above repair work is 104,925. Thus, the defendant B is liable to pay the plaintiff 104,925 won and damages for delay.

C. Determination on construction performance claims and damages claims against the defendant representative council

1) Determination on the request for construction performance

Article 2 (1) 10 (a) of the Multi-Family Housing Management Act provides that the head of the management office of the multi-family housing shall be the managing body of the multi-family housing, Article 63 (1) 1 provides that the maintenance, repair, and safety management of common areas of the multi-family housing shall be managed by the council of occupants' representatives, and Article 4 (2) of the Enforcement Decree of the same Act provides that the autonomous management body (management body) shall be supervised by the council of occupants' representatives. Article 79 of the Rules on the Management of the Apartment of this case also provides that the management body shall manage common areas. The representative meeting of the defendant directly or through the management and supervision of the head of the management office. Meanwhile, the entrance pipelines installed in the apartment balcony of the plaintiff as well as the plaintiff shall be jointly used by the households residing in the same person as the plaintiff and the defendant, and they shall be the common areas as the pipes used by two or more households pursuant to the proviso to subparagraph 3 of the Rules on the Management of the Apartment of this case.

In full view of the appraisal results and the overall purport of the arguments by appraiser D, the defendant representative meeting is obligated to repair the entrance pipelines in the balcony of the plaintiff apartment building, which are installed in the balcony of the plaintiff apartment building at the time of the repair of the company employed by the defendant representative meeting, and the number of water flows over a large quantity of water from the above floor. Thus, the above facts of recognition require the replacement of the fleet. Thus, according to the above facts of recognition, the defendant representative meeting bears the duty to repair the entrance pipelines in the balcony of the plaintiff apartment building, which is the common area.

2) Determination on the claim for damages

According to the facts acknowledged above, although the defendant representative meeting bears the duty of care of a good manager, such as checking the entrance pipe of the plaintiff balcony, which is a common area, and taking necessary measures or supervising the management body to resolve the damage, it may be found that the defendant representative meeting neglected its duty. Furthermore, according to the appraiser D's appraisal, damage caused by the leakage of the plaintiff balcony balcony can be recognized that the defects in the part for common use and the defects in the part for exclusive use of the defendant B are combined between the defects in the part for common use and the defects in the part for exclusive use of the defendant B. Thus, the defendant representative meeting is jointly liable to compensate the plaintiff for the above damage.

Therefore, the defendant representative meeting has the obligation to pay the plaintiff 104,925 won and damages for delay jointly with the defendant B.

D. Determination as to the Defendants’ indirect compulsory performance claims

1) The Plaintiff is an indirect compulsory performance in preparation for the failure of the Defendants to perform repair works, and the Plaintiff seeks to pay the Defendants an amount at the rate of one million won per month from the date of service of the original copy of the judgment of this case to the date of completion of repair works.

2) Article 261(1) of the Civil Execution Act provides that an order of indirect compulsory performance shall be issued in cases where the nature of an obligation can be indirectly forced. Such indirect compulsory performance is permitted only when it is possible to enforce another compulsory execution in the sense that the obligor’s personality is respected. As such, the subject of compulsory execution by indirect compulsory performance is an incidental act obligation and an obligation of omission.

However, the Defendants’ duty of remuneration asserted by the Plaintiff is not an incidental act that is exclusively used by the Defendants, but an alternative act that may allow a third party to do so at the Plaintiff’s expense. Such alternative act’s obligation cannot be deemed as a case where indirect compulsory performance is possible due to its nature. Therefore, the Plaintiff’s claim for indirect compulsory performance against the Defendants is without merit without need to further examine.

E. Sub-decision

Therefore, the Defendants jointly seek damages for delay from September 30, 2016, the delivery date of a copy of the complaint in this case, to the Plaintiff at the rate of 5% per annum as stipulated in the Civil Act, from September 8, 2017 to September 8, 2017, which is the date of the imposition of a significant dispute over the existence and scope of the Defendants’ obligations to perform, and damages for delay at the rate of 15% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the date of full payment (the Plaintiff is liable to pay damages for delay at the rate of 5% per annum as stipulated in the Civil Act, from February 19, 2016 to the date of delivery of a copy of the complaint in this case. However, since the Plaintiff’s representative meeting, from around February 2, 2016, notified the Plaintiff of the water leakage in the balcony’s apartment floor, the Plaintiff’s damages for delay in the above part of the balcony was finally destroyed by the Plaintiff’s 2.

In addition, Defendant B is obligated to perform water leakage prevention works by repairing the structural part between the floor of the balcony of the Plaintiff apartment building and the Defendant apartment building and repairing the land price of the Defendant apartment building. The Defendant representative meeting bears the duty to repair the entrance pipes of the Plaintiff apartment balcony.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of each of the above recognition, and each of the remaining claims is without merit, and it is dismissed. It is so decided as per Disposition.