The representative meeting of occupants of the first and second apartment houses (Attorney Cho Jong-soo, Counsel for the plaintiff-appellant)

Freeboard Kim (Attorney next-time, Counsel for the plaintiff-appellant)

June 16, 2006

Seoul Central District Court Decision 2004Da423138 Delivered on September 30, 2005

1. Revocation of a judgment of the first instance;

2. The defendant shall pay to the plaintiff 22,192,918 won with 5% interest per annum from January 7, 2005 to July 7, 2006 and 20% interest per annum from the next day to the day of full payment.

3. The costs of the lawsuit shall be borne by the defendant in the first and second instances.

4. Paragraph 1 can be provisionally executed.

The judgment of the first instance shall be revoked.

The primary purport of the claim: The defendant shall pay to the plaintiff 22,192,918 won with 5% interest per annum from the day following the delivery of a copy of the complaint of this case until the judgment of the court of the case is rendered, and 20% interest per annum from the next day until the full payment is made (the plaintiff reduced the part of the claim for damages for delay in the trial).

Preliminary claim: The defendant shall pay 22,192,918 won and 20% per annum to the head of the management office of the first and second apartment (defensive apartment) regardless of the title thereof until the judgment of the court of the first instance is rendered, and 5% per annum from the day after the copy of the complaint of this case is served to the day after the judgment of the court of the first instance is delivered, and 20% per annum from the following day until the full payment is made (the plaintiff added

1. Basic facts

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the pleadings as a whole in the descriptions of Gap evidence 1 to 4, Gap evidence 9, 10, and Eul evidence 2 to 4.

A. Status of the parties

The plaintiff is a representative meeting of occupants comprised of representatives elected in proportion to the number of households of each building by the occupants of the first and second apartment units (hereinafter referred to as "the apartment units of this case"), which is a common house of Seocho-gu Seoul Metropolitan Government. The defendant is the chairman of the Women's Association of the apartment units of this case.

B. The history of the enactment of the Guidelines for the Operation of Women's Association

(1) The former Housing Act (amended by Act No. 6943, Jul. 25, 2003) amended on May 29, 2003 (amended by Act No. 6943, Jul. 25, 2003) provides that the Mayor/Do Governor shall set the rules of collective housing management rules that provide for the management or use of collective housing for the protection of occupants and users of collective housing and the maintenance of order in residential life as prescribed by the Presidential Decree, and the occupants and users shall set the management rules by referring to the rules of the above management rules

Shebly, the Seoul Mayor prescribed the Standard Management Rules for Multi-Family Housing, and demanded the tenant, etc. of the apartment of this case to revise the previous Management Rules by May 30, 2004, referring to the above Standard Management Rules.

Article 23 of the Standard Management Rule provides that the council of occupants' representatives shall adopt the "standards for the operation of a self-employed organization, such as women's association related to the management of multi-family housing" in accordance with the relevant provisions of the Housing Act with the consent of a majority of its members, and accordingly, the occupants of the apartment of this case established the same provision while amending the Rules for the Management of Multi-Family Housing (hereinafter referred to as the "Management Rules") around May 2004 (Article 23).

On June 28, 2004, the plaintiff demanded that the defendant prepare and submit the operational criteria by July 30, 2004. However, on August 2004, the defendant demanded that the defendant submit the operational criteria again to the defendant on August 10, 2004. The defendant submitted the "to submit them by August 10, 2004" to the defendant on August 10, 2004, accompanied by a plan for annual activities of the Saemaul Women's Association (in the articles of association, only one copy of the articles of association, and some omission). The defendant submitted to the plaintiff on August 10, 2004.

(v) However, the Plaintiff, submitted by the Defendant, did not adopt the Articles of Incorporation of the Saemaul Women’s Association, and decided on August 13, 2004 with the consent of a majority of the Regulations on the Operation of Women’s Association (the validity from September 1, 2004; hereinafter “Standards for Operation of Women’s Association”) and demanded on August 18, 2004 that the Plaintiff operate the Women’s Association in compliance with the above standards while sending the above Operating Standards to the Defendant.

⑹ 이에 대하여 피고는 2004. 8. 30. 원고에게 위 운영기준이 이 사건 아파트의 현실에 적합하지 않다는 등의 이유로 이를 받아들일 수 없다고 하면서 2004. 9. 15.까지 부녀회의 정관을 개정해서 제출하겠다는 의사를 표시하였으나, 원고는 2004. 9. 2. 피고의 이의를 인정할 수 없다면서 이를 받아들이지 않았다.

2. Determination on the defense prior to the merits

With respect to the lawsuit of this case where the plaintiff filed a claim against the defendant for the return of the profits which had been managed by the female association based on the operating standards of the female association of this case, the defendant asserted that the lawsuit of this case is unlawful against the defendant, who is not a non-corporate association, for the return of the above profits against the defendant, who is not a natural person, and who is not a party.

However, in a lawsuit for performance as well as the party ability as a natural person, the defendant has the standing to be the defendant, so there is no reason for the defendant's defense.

3. Judgment on the main claim

A. The parties' assertion

The plaintiff asserts that the plaintiff is obliged to pay to the plaintiff the balance of the above profits, KRW 22,192,918, and delay damages, as the above guidelines for the operation of the women's association came into effect from September 1, 2004. The plaintiff asserts that the defendant is obligated to pay to the plaintiff the above balance of the profits, KRW 22,192,918, and delay damages.

The defendant asserts that the defendant does not have the right to claim the payment of the balance of the above profits against the plaintiff.

B. Determination

(1) The following facts are acknowledged by taking account of the overall purport of the pleadings in each of the evidence as set forth in Gap evidence No. 5-8, Gap evidence No. 13, Gap evidence No. 20-23, Eul evidence No. 5-13.

㈎ 이 사건 아파트의 부녀회는 부녀회 회원들로부터 회비를 받지 않고, 아파트 단지 내 게시판의 광고료, 일일 장터 사용료, 수요 장터 사용료, 에어로빅 등 주민건강 사무실 임대료 등 이 사건 아파트의 공유재산을 이용한 수익금(이하 ‘수익금’이라고 한다)으로 대부분 운영해 왔고, 이러한 수익금을 어린이나 노인 등을 위한 선물 구입비나 경로잔치 등의 행사 비용, 아파트 경비원들에 대한 장학금이나 생활비 보조, 불우이웃 돕기 등으로 사용해 왔으며, 이러한 사용 내역에 대해서는 매년 원고로부터 감사를 받아왔다.

The remaining amount of money that the above female association has used is KRW 22,192,918 as follows (in case of deposits in the passbook in the name of the defendant).

2,546,310 won for term deposits in Heung Bank

Gold,692,006 won

savings deposits of Kiung Bank (as of September 12, 2004) 4,596,986

Ko Bank Deposit 5,357,616 won

㈏ 그러던 중 원고가 앞서 본 바와 같은 경위로 2004. 8. 13. 이 사건 부녀회 운영기준을 제정하였는데, 그 주요 내용은 다음과 같다.

(1) The operating expenses of the female council shall be appropriated from the following incomes:

Funds received pursuant to the project plan approved by the representative meeting of occupants;

Proceeds from the sale of recycled products

Funds created with the efforts of the Women's Association itself (e.g., the Bags Association, etc.)

Supporting money, donations, etc.;

Other revenues

(2) In consideration of the fact that operating expenses of the female council are earnings obtained by utilizing the public property of the occupants, the operation plan shall be formulated and executed (Article 30) at the following rate (±10%):

Return to residents: at least 70 percent;

- Direct return 40%

- 20% of the United States dollars, tendings, etc.

- Various events in the complex 10%

Helping neighbors: 10%

Expenses for activities of the Women's Association: 15%

Other domestic and foreign cooperation: 5%

(3) The chairperson of a female council shall undergo a resolution on the business plan and budget bill for the internal year by the end of November of each year and submit them to the general meeting for approval, and when the business plan and budget bill are confirmed at the general meeting, he/she shall request the representative meeting of occupants to approve it, and shall receive and utilize the necessary operating expenses on a monthly basis when obtaining approval from

The Women's Association shall not be executed in excess of the budget under such a project plan, but may be executed with prior approval of the meeting of occupants (Article 31) where it is inevitable.

(4) An auditor of a female council shall conduct an audit on the monthly and annual settlement of accounts, and report the results thereof to an auditor of the representative meeting of occupants (Article 16); and the president of a female council shall report the results thereof to the representative meeting of occupants after obtaining approval of the general meeting on the annual settlement of accounts by the resolution of the board of directors (Articles 16 and 32).

(5) Two won shall be operated (Article 3 of the Addenda) with the management entity of a profit-making business utilizing public property and the subject of the execution of projects for residents therein.

Revenue management entity: Management entity (Management Office)

Business Execution Entity: Women's Association

Management and supervision by subject: Council of Representatives of Residents

㈐ 이에 원고는 2004. 9. 3. 이 사건 아파트의 관리사무소장(이하 ‘관리사무소장’이라고 한다)에게 위 부녀회 운영기준을 첨부하여 아래와 같이 통지하였다.

① To manage the public property of the apartment of this case in a transparent and efficient manner, affairs related to the proceeds from September 1, 2004 to public property shall be delegated as follows:

Management of Proceeds: The head of the management office (the head of the management office).

Execution of profits: Women's association (magls's association)

General management: A representative meeting of occupants (representative meeting);

(2) A female association shall have a written contract, passbook, seal, etc. related to its profits transferred from the female association.

(3) If the female society refuses to comply with it, it shall take legal measures with the plaintiff's prior approval.

㈑ 한편, 피고는 2004. 9. 22. 원고 대표자에게 부녀회 장부, 은행 통장, 임대차 계약서 등 관련 문서를 감사 자료로 제출하겠다는 각서를 작성해 주었고, 2004. 9. 24. 관리소장 이석제에게 위 관련 문서와 피고의 인장 등을 인계하였다.

However, on October 27, 2004, the defendant asserted that each written statement of Sep. 22, 2004 to the representative of the plaintiff was made by duress and that the documents, such as the books of women's association, were also withdrawn from the party, and that he/she would not accept the plaintiff's request in the future.

Even after that, the plaintiff requested the defendant to return the revenue over several times, but the defendant continued to refuse it.

㈒ 이에 관리사무소장은 2004. 11. 29. 피고에게 ‘2004. 12. 7.까지 수익금 잔액 금22,192,918원을 관리사무소 명의로 되어 있는 통장으로 송금할 것과, 만약 이에 불응할 경우에는 원고의 승인을 받아 수익금 잔액의 지급을 구하는 소송을 제기하겠다’는 취지의 서면을 발송하였다.

㈓ 그럼에도 피고가 계속하여 위 수익금의 잔액을 반환하지 않자, 원고는 2004. 12. 16. 참석자 전원의 만장일치로 의결하여 피고를 상대로 이 사건 소송을 제기하기에 이르렀다.

㈔ 한편, 이 사건 부녀회 운영기준의 효력이 발생한 이후부터는 관리사무소장이 이 사건 아파트의 공유재산과 관련된 수익금을 관리하고 있다.

D. In light of the foregoing facts, the tenant representative meeting under the Housing Act and subordinate statutes has management authority, such as determining and implementing matters concerning the management of multi-family housing, and the head of the management office is in the position of performing duties, such as executing the matters resolved by the above representative meeting under the supervision of the tenant representative meeting, the management authority of the Women's Association in this case and the operation of the Women's Association shall be determined as follows.

㈎ 2004. 9. 1.부터는 부녀회가 그동안 운영 자금으로 관리·사용해 오던 수익금을 원고가 관리한다.

㈏ 다만, 아래와 같은 수익금의 관리와 관련한 구체적이고 실질적인 업무는 관리사무소장이 원고의 집행기구의 지위에서 이를 담당한다.

(1) Conclusion, etc. of contracts related to the common property of the instant apartment.

: Conclusion of a contract for use of bulletin boards, daily storages, demand sites, etc. in apartment complexes, conclusion of a contract for lease to residents' health offices, etc.

(2) Keeping profits, such as rents, rents, etc. accrued therefrom.

(3) Execution of profits, such as paying operating expenses each month to women's association using profits.

㈐ 부녀회는 원고로부터 매년 사업계획과 예산안을 승인받은 다음 그에 따라 관리사무소장으로부터 수익금에서 매월 운영경비를 지급받아 사업을 시행한다.

However, regardless of the co-owned property of the apartment of this case, funds raised by the Women's Association by its own efforts, profits from the sale of recycled products, and funds contributed or contributed to the Women's Association's own funds, and such funds shall not be managed and supervised by the plaintiff.

Therefore, the defendant is obliged to pay to the plaintiff who seeks return on the basis of the right to manage the proceeds, 22,192,918 won in the balance of the proceeds, and as requested by the plaintiff, 5% per annum under the Civil Act from January 7, 2005 to July 7, 2006, which is the date of the ruling of the court of first instance, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified without further determination as to the conjunctive claim added in the trial. Since the judgment of the court of first instance is unfair with different conclusions, the plaintiff's appeal is accepted, and the judgment of the court of first instance is revoked, and the above recognition money is ordered to be present at this time and it is so decided as per Disposition.

Judges Lee Ba-so (Presiding Judge)