[1] The case where a voluntary lawsuit trust is permitted

[2] Whether an entrusted management company entrusted with management duties by a management body of an aggregate building has the standing to claim management expenses by filing a lawsuit under its own name against the sectional owner, etc. (affirmative in principle)

[1] In a lawsuit on a property right, it is not permitted in principle to delegate the relevant lawsuit to a third party. However, it is not a deviation from the principle of attorney-at-law representation under Article 87 of the Civil Procedure Act or the prohibition of a trust in a lawsuit under Article 6 of the Trust Act, but it is not a legitimate ground to recognize it, and it may be allowed in exceptional or limited cases where there is a reasonable need to recognize it.

[2] Where a management body of an aggregate building comprehensively delegates management affairs, including the imposition and collection of management expenses, to an entrusted management body, it can be deemed that the authority to file a judicial claim for management expenses is also granted. In such cases, where the entrusted management body directly files a judicial claim for management expenses in its own name to collect delinquent management expenses in the course of performing management affairs, it constitutes a voluntary lawsuit trust. However, it is reasonable and reasonable for many sectional owners to jointly bear expenses for the management of an aggregate building and to have a management body comprised of sectional owners delegate the management of a building to a specialized management body for the efficient management of common areas, and such management method is a general transaction reality, and the collection of management expenses is an essential element that is naturally incidental to the performance of its duties. In addition, it is recognized by the provisions of Acts that delegate the management affairs to a housing management manager for an apartment building of at least a certain size, which is a kind of multi-family building, and that the housing management management body claims for the trial of management expenses [Article 43(2) and (5) of the former Housing Act (amended by Act No. 13474 of Aug. 111, 20, 2015]

Considering this point, the entrusted management company entrusted with the management of an aggregate building by the management body is eligible to file a lawsuit against the sectional owner, etc. in his/her own name, except in extenuating circumstances.

[1] Articles 51 and 87 of the Civil Procedure Act, Articles 6 and 7 of the Trust Act / [2] Articles 51 and 87 of the Civil Procedure Act, Articles 43(2) (see current Article 5(1) and (5) (see current Article 12 of the Multi-Family Housing Management Act) and 45(1) (see current Article 23(1) of the Multi-Family Housing Management Act) of the former Housing Act (Amended by Act No. 13474, Aug. 11, 2015)

[1] Supreme Court Decision 83Meu1815 Decided February 14, 1984 (Gong1984, 508), Supreme Court Decision 2010Da87474 Decided May 10, 2012 (Gong2012Sang, 977)

Sujin Development Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Han-soo et al., Counsel for the defendant-appellant)

Defendant-Counterclaim (Attorney Jin-bok et al., Counsel for plaintiff-appellant)

Seoul High Court Decision 2014Na13671, 13688 decided November 20, 2014

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

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

1. As to the grounds of appeal Nos. 1 and 2

A. In a lawsuit on a property right, it is not permissible, in principle, to delegate a related lawsuit to a third party to a management and disposition right regarding a right or legal relationship, which is a subject matter of the lawsuit, is deemed a discretionary litigation trust. Provided, That it is not unlawful to avoid the principle of attorney-at-law representation as prescribed by Article 87 of the Civil Procedure Act or the prohibition of a trust in a lawsuit as prescribed by Article 6 of the Trust Act, but may be allowed in exceptional and limited cases where reasonable grounds for recognition thereof exist (see, e.g., Supreme Court Decisions 83Meu1815, Feb. 14, 1984; 2010Da8747474, May 10, 2012).

Where a management body of an aggregate building comprehensively delegates management affairs, including the imposition and collection of management expenses, to an entrusted management body, it is ordinarily deemed that the authority to file a judicial claim concerning management expenses, is granted. In such cases, it is a voluntary litigation trust in which the entrusted management body directly files a judicial claim concerning management expenses in its name to collect delinquent management expenses in the course of performing the management work. However, it is necessary for a large number of sectional owners to jointly bear expenses for the management of an aggregate building and entrust a management body comprised of sectional owners with the management of a building to a specialized controlled entity for the efficient management of common areas, and such management method is a general transaction reality, and the collection of management expenses is an essential element that is naturally incidental to the performance of its duties. In addition, for a multi-family housing of a certain size larger than that of an aggregate building, the management authority of an aggregate building shall be delegated to the housing management manager and the housing management operator shall file a judicial claim concerning management expenses (Article 43(2), (5), and (1) of the former Housing Act (amended by Act No. 13474, Aug. 111, 2015)). 201).

Considering this point, the entrusted management company entrusted with the management of an aggregate building by the management body is qualified to file a lawsuit against the sectional owner, etc. in his/her own name, except in extenuating circumstances.

B. According to the reasoning of the lower judgment and the first instance judgment cited by the lower court, it is reasonable to see that the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) has been granted the right to perform the litigation on the claim for unpaid management expenses through the instant management services contract, and such voluntary lawsuit trust is not likely to circumvent the principle of attorney-at-law representation or the prohibition of the litigation trust under the Trust Act, and there is no reasonable need to recognize it. Thus, the lower court determined that the Plaintiff has a judicial authority to claim the unpaid management expenses against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) who is a sectional owner.

Such judgment below is just in accordance with the legal principles as seen earlier, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to discretionary litigation trust or in violation of disposition authority

2. As to the grounds of appeal Nos. 3 and 4

The lower court determined that the Plaintiff did not have a duty to return the portion of the third floor warehouse and the sixth floor management office to the Defendant, on the grounds that the Plaintiff occupied and used the part of the third floor management office among the instant building with the consent or implied consent of the deceased Nonparty or the Defendant, and occupied and used the part of the third floor warehouse and the sixth floor management office.

The ground of appeal disputing this judgment is merely an error in the selection of evidence and fact-finding, which are the exclusive authority of the court below, and thus cannot be deemed a legitimate ground of appeal.

3. Conclusion

Therefore, the appeal is dismissed by the assent of all participating Justices, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Kwon Soon-il (Presiding Justice)