[1] The procedure for establishing a management body under the Multi-Unit Residential Building Act (contributed establishment) and the standard for determining whether a management body is a management body

[2] The case reversing the judgment of the court below that some of the sectional owners and tenants do not constitute a management body and regulations under the Multi-Unit Residential Building Act

[1] A management body under Article 23 (1) of the Multi-Unit Residential Building Act is not an organization established only through an organizational act, but where there is a building which constitutes a sectional ownership relationship, it is naturally an organization formed with all sectional owners. If an organization consisting of sectional owners and meets the purpose of Article 23 (1) of the Multi-unit Residential Building Act, it can play a role as a management body regardless of its form of existence or name. Even if it is a management body consisting of sectional owners and persons who are not sectional owners, it can concurrently play a role as a management body consisting

[2] The case reversing the judgment of the court below that some of the sectional owners and the tenant's management rules do not constitute the management body and regulations under the Multi-Unit Residential Building Act, on the ground that although the shopping mall's membership includes a tenant who is not a sectional owner, it may concurrently belong to the management body consisting of only the sectional owners, and that if only one tenant participated in the resolution in establishing the shopping mall's management rules, it may be deemed that the tenant exercised his/her voting right on behalf of the sectional owner or made a written resolution, and in such a case, the management rules of the shopping mall's membership and its management rules do not fall under the management body and regulations under

[1] Articles 23(1) and 28(1) of the Multi-Unit Residential Building Act / [2] Articles 23(1) and 28(1) of the Multi-Unit Residential Building Act

[1] Supreme Court Order 94Da49687, 49694 delivered on March 10, 1995 (Gong1995Sang, 1590), Supreme Court Order 94Ma2377 delivered on March 10, 1995 (Gong195Sang, 1699)

Applicant

Respondent

Seoul High Court Decision 93Na45345 delivered on April 26, 1994

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the applicant's grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the application of the above 10th of December 20 of the same year that the Respondent's 2nd of the above Respondent's 2nd of the sales contract and the Respondent's 1st of the above Respondent's 2nd of the sales contract and the Respondent's 2nd of the sales contract and the Respondent's 1th of the above Respondent's 2nd of the sales contract and the Respondent's 2nd of the Respondent's 4th of the above Respondent's Respondent's 2nd of the Respondent's 2nd of the Respondent's 1st of the above Respondent's Respondent's 6th of the sales contract and the Respondent's 1th of the Respondent's Respondent's 2nd of the above Respondent's 6th of the Respondent's 16th of the sales contract, the Respondent's 1th of the above Respondent's 2nd of the 16th of the sales contract.

2. Article 23(1) of the Multi-Unit Residential Building Act (the Act, hereinafter referred to as the "Act") provides that "If a sectional ownership relationship with respect to a building is established, sectional owners shall form a management body with the purpose of carrying out the business relating to the management of the building and its site and its accessory facilities by all the sectional owners." Thus, the management body shall be an organization established only through any organizational action, but if a building is established and a sectional ownership relationship is established, it shall be naturally composed of all the sectional owners (see Supreme Court Decision 94Da49687, 94Da49694, Mar. 10, 1995). If an organization composed of sectional owners is in accordance with the purpose of Article 23(1) of the Act, it may act as a management body regardless of its form or name, and even if it is an organization consisting of sectional owners and those who are not sectional owners, it may concurrently possess the nature of the management body composed solely of sectional owners.

In addition, matters between sectional owners regarding the management or use of building, site or annex facilities which are not provided for in the Act may be determined by the regulations (Article 28(1) of the Act); the establishment, amendment or repeal of the regulations shall be done with the consent of at least 3/4 of the sectional owners and voting rights at the management body meeting (Article 29(1) of the Act); and if there is an agreement in writing with at least 4/5 of sectional owners and voting rights regarding matters which are determined by the regulations or regulations at the management body meeting, the resolution of the management body meeting shall be deemed to have been adopted (Article 41(1) of the Act); voting rights may be exercised in writing or by proxy (Article 38(2) of the Act); and resolution in writing under Article 41(1) of the Act shall also be possible even by proxy; and regulations established by such resolution shall also be effective to the special successor and possessor of the sectional owners (Article 42(1) and (2) of the Act).

However, according to the facts duly established by the court below, when selling 21 stores in the commercial building of this case, the above Military Mutual Aid Association formed a prosperity association composed of several buyers, and agreed to manage the entire commercial building in accordance with the management rules. Among 21 merchants operating the store in the commercial building of this case, the remaining 20 persons (including one store owner and one tenant as a tenant according to the records) excluding the respondent among the 21 merchants operating the store in the commercial building of this case were organized on February 23, 1993 and established the rules for the management of the commercial building in accordance with the agreement at the time of the sales contract. The new image shop management rules have the effect of the rules for the commercial building management, even if the tenant who is not a sectional owner but a sectional owner is included in the members, the nature of the management body composed only of the sectional owners, and in light of the fact that only 10,000 persons participated in the establishment of the rules for the commercial building management of the commercial building of this case, there is room to deem that the tenant exercised voting rights on his behalf or in writing.

Therefore, the court below should have deliberated whether the sound image screen has the nature of the management body and whether the management rules of the management body meet the requirements of the management body rules, and then should have judged whether the provisions of the business sector restriction provisions of the management rules of the commercial building have the effects on the respondent. However, the remaining management rules of the commercial building, which held that the sound image screen and the management rules of the commercial building did not have the nature of the management body and the regulations under the law, shall not have the nature of the management body and the regulations, and shall not be deemed to have the effect on the respondent unless the respondent is not the union members of the regulations. Accordingly, the court below rejected the applicant's provisional disposition application of this case, which affected the conclusion of the judgment by misunderstanding the legal principles as to the management body and the regulations of the management body and the management body, which affected the conclusion of the judgment. The ground for this point has merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)