[1] Where a small-sum case does not meet the requirement of “when a decision contrary to the precedents of the Supreme Court has been made,” which may be the ground of appeal, but the Supreme Court can determine the error in interpreting and applying the substantive law

[2] The meaning of "matters related to the separate ownership" that are excluded from the duties of a superstore manager under the former Distribution Industry Development Act, and whether the restriction or alteration of the business type of a commercial building constitutes "matters related to the separate ownership" (affirmative)

[3] Whether a management body under the Act on the Ownership and Management of Aggregate Buildings may claim management expenses for common areas against a sectional owner even if there is no management body agreement in force on the collection of management expenses (affirmative), and whether the same applies to a superstore manager who has been duly established pursuant to the Distribution Industry Development Act and has completed procedures for filing reports (affirmative)

[1] Article 3 subparagraph 2 of the Trial of Small Claims Act / [2] Article 12 (1) 3, (2), and (4) of the former Distribution Industry Development Act (Amended by Act No. 14997, Oct. 31, 2017); Articles 23 and 28 of the Act on the Ownership and Management of Aggregate Buildings / [3] Articles 17, 23, and 25 (1) of the Act on the Ownership and Management of Aggregate Buildings; Articles 12 (1) 3 and 25 (2), and 12-3 of the Distribution Industry Development Act

[1] Supreme Court Decision 2003Da1878 Decided August 20, 2004 (Gong2004Ha, 1571), Supreme Court Decision 2012Da48824 Decided March 26, 2015 / [2] Supreme Court Decision 2007Da83427 Decided October 13, 201 (Gong201Ha, 2293), Supreme Court Decision 201Da79258 Decided November 29, 2012 (Gong2013Sang, 17) / [3] Supreme Court Decision 2009Da22666, 2273 (Gong209Ha, 1427) Decided July 9, 2009

3. A person who holds the right of redemption on the ground that he/she holds the right of redemption on the ground that he/she holds the right of redemption on the ground

Defendant (Attorney Han-han et al., Counsel for defendant-appellant)

Seoul Central District Court Decision 2017Na27371 Decided September 12, 2018

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. Grounds of appeal concerning small amount of claims

In a case where there is no precedent of the Supreme Court on the interpretation of statutes applicable to a specific case in a small-sum case, there is a case where a number of small-sum case, the issue of which is the interpretation of the same statutes, is pending in the lower court, and there is a case where the Supreme Court, on the ground that it is a small-sum case, concluded the case without making a decision on the interpretation of the statutes, it would be likely to undermine the legal safety of citizens’ lives if the case is terminated without making a decision on the interpretation of the statutes. In such a case where there is no special circumstance, even if it does not meet the requirement of “when a decision contrary to the precedents of the Supreme Court,” which may be the ground for final appeal, it shall be deemed that the error in the interpretation and application of the substantive law can be determined in a manner that performs the fundamental function of the Supreme Court on the unification of statutory interpretation (see, e.g., Supreme Court Decisions 2003Da1878, Aug. 20, 2004; 201

2. Determination on the plaintiff's claim for management expenses for the sixth floor

A. The former Distribution Industry Development Act (amended by Act No. 1497, Oct. 31, 2017; hereinafter “former Distribution Industry Development Act”) grants a general authority for the maintenance and management of a superstore to a superstore manager who is established by occupant-merchants, who are not a management body under the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act”) that is naturally established by all sectional owners, but is in accordance with the provisions of the Act on the Ownership and Management of Aggregate Buildings. However, with respect to “matters related to sectional ownership”, the provisions of the Act on the Ownership and Management of Aggregate Buildings, including regulations established by a management body, which is a sectional owner’s organization, regulate the interests between the sectional owner and occupant-merchants in the management of a superstore. Therefore, considering the legislative purport of the former Distribution Industry Development Act and the relationship with the Act on the Ownership and Management of Aggregate Buildings, it is reasonable to interpret that the exercise of the ownership of a store owner and the ownership of the sectional owner are likely to be infringed if permitted to the superstore manager or the superstore manager (see, e.g., Supreme Court Decision 20137Da37.

Meanwhile, in the case of an aggregate building subject to the regulation of the Act on the Ownership and Management of Aggregate Buildings, if the sale in lots commences and the necessity of joint management arises due to the commencement of occupancy in lots, a management body under Article 23 of the Act on the Ownership and Management of Aggregate Buildings consisting of all sectional owners including the sectional owners of the unsold section of exclusive ownership at that time may be established or changed as a matter of course, and after the establishment of the management body, the restriction on the type of business may be newly established or changed through the regulations of the management body under Article 28 of the Act on the Ownership and Management of Aggregate Buildings. Since such restriction on the type of business basically has the meaning of guaranteeing the exclusive right to operate the relevant type of business to the buyer or sectional owners, it is necessary for the buyer who is not a third party such as lessee or sectional owners to reach an agreement (see Supreme Court Decision 2011Da79258, Nov. 29, 2012). Therefore, the restriction or change of the type of business of a commercial building constitutes “matters related to the ownership or ownership of a superstore.”

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) With respect to the shopping mall (building name omitted) located in Jung-gu Seoul Metropolitan Government, the Plaintiff has completed the reporting procedure to the head of the Jung-gu Seoul Metropolitan Government on September 4, 2013 pursuant to the former Distribution Industry Development Act with respect to the shopping mall (hereinafter “instant shopping mall”), which is a 7th underground and 16th ground building located in Jung-gu Seoul Metropolitan Government (number omitted), and handles the duties of imposing and collecting management fees in the capacity of the superstore manager.

2) The Defendant is a sectional owner of the second floor (house number 1 omitted) and the sixth floor (house number 2 through 5 omitted) under the ground of the shopping mall of this case (hereinafter “second floor store of this case”) (hereinafter “the sixth floor store of this case”).

3) The instant shopping mall management body, which is a management body under Article 23(1) of the Act on the Ownership and Management of Aggregate Buildings, is to promote collective admission points for the five, six, and seven stories of shopping malls in order to revitalize shopping malls at once, and was submitted by the sectional owners, including the Defendant, with a written consent related to the promotion of collective admission.

4) According to Article 41 of the Management Rules of the shopping mall of this case, matters concerning the change of the type of business of each floor and additional allocation are decided by the Steering Committee of the shopping mall management body of this case composed of representatives from each floor. Accordingly, on November 12, 2009, the Steering Committee of the shopping mall management body of this case decided to “domestic and foreign brand salesroom occupants, entertainment, and entertainment exhibition hall for attracting group membership” with the content that the operation committee of the shopping mall management body of this case moves the existing business items of 5,6, and 7 stories to other floors, and the relevant floor is to change to “before domestic and foreign brand salesroom occupants, entertainment, and entertainment exhibition hall for attracting group membership.”

5) According to the above resolution, all shop occupants operating on the sixth floor of the shopping mall of this case moved to another floor and the sixth floor was vacant room. Around March 2010, the shopping mall management body of this case took measures, such as cutting electricity, cutting water, escalator, suspending the operation of elevators, etc. on the sixth floor for the safety management of the store.

6) After several times, the contract was concluded, but it was not concluded. The management committee of the shopping mall management body of this case was held on August 3, 2012 by taking into account the restoration of its unique items and the time of their implementation as the agenda items. The agenda items to be returned to the unique items before the change was made by the resolution of November 12, 2009 was resolved, but the quorum was rejected as to the time of the return of items. The shopping mall management body of this case did not take measures to return its unique items.

C. Examining the following circumstances revealed based on such factual basis in light of the legal principles as seen earlier, in a case where unlawful use obstruction is recognized by the shopping mall management body, etc., the Defendant’s claim for damages against the management body, etc., it is difficult to deem that the Plaintiff interfered with the Defendant’s use of and profit from the instant sixth floor by either illegally closing the store or maintaining the closure of the store.

1) It is determined by the resolution of November 12, 2009 by the operating committee of the shopping mall management body of this case where the salesroom of this case changed the business items of the six-storys and all six-storys move to different floors.

2) Since August 2012, the Defendant’s failure to use each of the instant six-story stores for the original purpose was due to the fact that the Operating Committee of the Management Body of the Shopping mall failed to decide on the date of returning their own products on August 3, 2012, and thus was not able to be recovered from the six-story level, and it is difficult to deem otherwise due to the Plaintiff’s failure to supply electricity, water, etc. to the six-story level.

3) The return of the unique items by each floor constitutes “matters pertaining to the separate ownership,” and does not include the Plaintiff’s business as a superstore manager established by shop occupants, since it constitutes “matters relating to the restriction on or change in the business type of commercial buildings.”

4) In order to coordinate interests between the owner of a superstore and the occupant-merchants, it is unreasonable to transfer the economic damage suffered by the owner of the shopping mall management body of this case to the Plaintiff, as long as the relevant statutes have separate management body and the superstore manager under the former Distribution Industry Development Act.

D. Nevertheless, solely based on its stated reasoning, the lower court dismissed the Plaintiff’s claim for management expenses corresponding to this part by deeming that the Plaintiff interfered with the Defendant’s use and profit-making of each of the six-story stores of this case. In so doing, the lower court erred by misapprehending the legal doctrine on the obligation to pay management expenses of the sectional owners, thereby adversely affecting the conclusion of the judgment. The allegation

3. Determination as to the plaintiff's claim for management expenses for the second underground floor

A. Article 17 of the Aggregate Buildings Act provides, “Each co-owner shall bear the management costs of the section for common use and other obligations according to the ratio of his/her share, unless otherwise stipulated by the regulations,” and Article 25(1) of the same Act provides, “The manager shall have the authority and duty to claim and receive the expenses for the preservation, management, and change of the section for common use, for the management of the management body’s affairs, and for managing the money.” Accordingly, even if there is no management body regulation, etc. in force for the collection of management expenses, the management body under the Aggregate Buildings Act does not have the right and duty to claim management expenses for the section for common use pursuant to Article 25(1) of the Aggregate Buildings Act (see Supreme Court Decision 2009Da22266, 22273, Jul. 9, 2009). The manager of a superstore duly established and completed the reporting procedure pursuant to the Distribution Industry Development Act, even if he/she recognizes the right to impose and collect management expenses for the section for common use, etc.

B. According to the reasoning of the judgment below, the plaintiff sought management expenses from the defendant, who is the sectional owner of the second floor store of this case as the manager of the superstore, and the court below rejected the plaintiff's claim on the ground that the ratio of expenses claimed by the plaintiff as the ground for the imposition of management expenses, cannot be deemed as having been prepared at the time of the formation of the management body, and it cannot be deemed as having been applied until now, and even so, it cannot be a legitimate ground for

However, in light of the legal principles as seen earlier, insofar as the Defendant is deemed liable to bear management expenses for common areas under the Aggregate Buildings Act as a sectional owner, the lower court should have further deliberated on the scope of management expenses corresponding to common areas among the management expenses that the Plaintiff seeks, and determined that the Defendant bears the management expenses corresponding thereto. The lower court erred by misapprehending the legal principles on the bearing of management expenses for the sectional owner of an aggregate building, which affected the conclusion

4. Conclusion

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 Ki-taik (Presiding Justice)