[1] Requirements and method of determining a sectional owner's right to claim an auction against a section for exclusive use and a right to use site under Article 45 of the former Act on Ownership and Management of Condominium Buildings

[2] A person entitled to a claim for an auction under Article 45 of the former Act on Ownership and Management of Condominium Buildings

[1] If a sectional owner’s right to demand an auction against the section for exclusive use and right to use site as provided by Article 45 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 9172 of Dec. 26, 2008), it is not sufficient to have a resolution of the management body meeting by majority of 3/4 or more of the sectional owners and voting rights as provided by Article 45(2) of the same Act. Before that, “the sectional owner’s right to demand an auction has become extremely difficult to maintain community life as a result of the sectional owner’s act detrimental to the conservation of the building and other acts detrimental to the common interests of the sectional owner’s common interest as to the management and use of the building” as provided by Articles 45(1) and 5(1) of the same Act must be met. As such, if the above right to demand an auction has been exercised, the sectional owner’s right to demand an auction against his own will has lost its ownership and right to use site and has not been reduced from the aggregate building. Therefore, the sectional owner’s right or other acts should be determined.

[2] Article 45 (1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 9172 of Dec. 26, 2008) provides that "the manager or the sectional owner designated by the resolution of the managing body's meeting" is "the sectional owner who is entitled to file a request for auction with the court." Thus, even an aggregate building is not a person entitled to file a request for auction by the resolution of the managing body's meeting, unless it is designated as a person entitled to file a request for auction as above by the resolution of

[1] Articles 5(1) and 45(1) and (2) of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 9172, Dec. 26, 2008) / [2] Article 45(1) of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 9172, Dec. 26, 2008)

Plaintiff (Attorney Jin full-time, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 2008Na98244 decided May 14, 2009

The part of the judgment of the court below concerning the designated parties shall be reversed, and the judgment of the court of first instance shall be revoked, and the lawsuit concerning that part shall be dismissed. The remaining appeal shall be dismissed. All costs of the lawsuit shall be borne by the plaintiff (appointed

1. We examine the grounds of appeal on the part concerning the Plaintiff (Appointed Party) (hereinafter “Plaintiff”) in the instant appeal.

If a sectional owner’s right to demand an auction on the section for exclusive use and right to use site under Article 45 of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 9172, Dec. 26, 2008; hereinafter the same) is not sufficient to have a resolution of the management body meeting by a majority of 3/4 or more of the sectional owners and voting rights as provided in Article 45(2) of the same Act, and as such, “the sectional owner’s right to demand an auction on the section for exclusive use and right to use site” under Articles 45(1) and 5(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 9172, Dec. 26, 2008; hereinafter the same shall apply), it is extremely difficult to maintain community life due to an act detrimental to the common interest of the sectional owner, such as acts harmful to the preservation of the building, acts of sectional owner’s right to demand an auction against his/her own will, and such other acts are not necessary to be determined.

Of the specific grounds for the Plaintiff’s claim for auction, the lower court rejected the Plaintiff’s claim for auction under Article 5(1)5(1) of the Aggregate Buildings Act solely on the ground that: (a) the Defendant was parked exclusively at the entrance of the instant aggregate building; and (b) the mobile communications company removed mobile antenna installed on the rooftop of the instant aggregate building due to the Defendant’s illegal and unjust civil petition filing; (c) the Defendant continuously filed a civil petition with the competent administrative agency in bad faith or habitually; and (b) the Defendant filed a civil complaint or civil lawsuit against the executive officer or some sectional owners of the instant aggregate building; (c) the Defendant filed a criminal complaint or civil lawsuit against the competent administrative agency without seeking understanding or demanding correction from the managing agency or other sectional owners; (b) the conflict and conflict between the Defendant and the executive officer or some sectional owners of the instant aggregate building; and (c) the Defendant’s civil petition or criminal complaint cannot be deemed to have been entirely based on such false facts.

In light of the records, the court below's explanation of abstract interpretation of Article 45 (1) of the Act on the Ownership and Management of Aggregate Buildings that "if it is impossible to maintain a community life without the withdrawal of a sectional owner, it shall be interpreted as a limited interpretation." However, the above specific fact-finding and determination as to this case are just and acceptable. There are no errors in the misapprehension of legal principles as to the aggregate building, as alleged in the grounds of appeal.

2. Furthermore, decisions are made ex officio.

Article 45 (1) of the Aggregate Buildings Act provides that "the manager or the sectional owner who was appointed by the resolution of the management body meeting" shall be entitled to request an auction to the court pursuant to Article 45 (1) of the same Act. Therefore, even a sectional owner of an aggregate building is not designated as a person entitled to request an auction as above by the resolution of the management body meeting, if it does not have the standing

However, according to the records, there is no evidence to prove that the designated parties of this case were designated as the person who requested the auction of this case by the resolution of the management body meeting. Therefore, the part concerning the designated parties of this case among the lawsuit of this case shall be deemed unlawful as it has no standing.

Nevertheless, the court below erred by misapprehending the legal principles as to a person entitled to request an auction under Article 45 (1) of the Aggregate Buildings Act, which maintained the judgment of the court of first instance which rendered a judgment on the merits including the part concerning the designated parties among the lawsuits in this case.

3. Therefore, the part of the judgment of the court below concerning the designated parties is reversed, and this part of the judgment of the court of first instance is revoked, and the lawsuit is dismissed, and the remainder of the appeal is dismissed, and the total cost of the lawsuit is borne by the losing party. It is so decided as per

Justices Kim Ji-hyung (Presiding Justice)