Plaintiff 1 and 14 others (Law Firm Fame, Attorney Gyeong-Gyeong et al., Counsel for plaintiff-appellant)

Yusco Co., Ltd. (Attorney Seo-sik et al., Counsel for defendant-appellant)

December 12, 2014

Seoul Eastern District Court Decision 2013Kadan104999 Decided April 22, 2014

1. Revocation of a judgment of the first instance;

2. The plaintiffs' claims against the defendant are all dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The Defendant: (1) remove a building built of reinforced concrete structure of 19.8 square meters on board, which connects each point of (2) 1,2,3,44 and 1 of the annexed drawings, among the land size of 6484.7 square meters in Namyang-si ( Address 1 omitted); and (2) remove a building built of reinforced concrete structure of 19.8 square meters on board, which connects each point of 1,2,3,4, and 1 of the annexed drawings, among the land size of 6484.7 square meters in Namyang-si ( Address 1 omitted); and (49.7 square meters on board, which connects each point of 49.7 square meters in sequence

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The Plaintiffs co-ownership of the said site as co-owners of ○○○○○○○○○○○○○○○○○ (hereinafter “instant apartment”) that is an aggregate building constructed on the land of 6484m2 and 505m2 on the land of 505m2, Namyang-si, Namyang-si ( Address 1 omitted).

B. On December 2005, the Defendant installed an urban gas pressure room (facilities converting urban gas from high pressure and heavy pressure into low-tension, and hereinafter “instant pressure pressure room”) which is a reinforced concrete structure of 19.8 square meters in the ship connecting each point of 1, 2, 3, 4, and 1 in the annexed Form No. 49.7 square meters on the ground of the annexed Form No. 5, 6, 7, 8, and 5 in order to connect each point of 49.7 square meters on the ground of the annexed Form No. 49.7 square meters (hereinafter “instant site”), which is the site of the instant apartment, to the urban gas pressure room (hereinafter “the instant pressure pressure room”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Gap evidence 2-1 through 14, Gap evidence 3-1 through 4, Gap evidence 4, 5, 11, the purport of the whole pleadings

2. Determination on the cause of the claim

A. The assertion

The Plaintiffs, co-owners of the instant site, are seeking removal of the pressure room of this case and delivery of the instant site against the Defendant who occupied and used the instant site without any title, as an act of preserving jointly-owned property.

B. Determination

According to Article 16 (1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”), matters concerning the management of common areas shall be determined by a resolution of an ordinary assembly, but each co-owner may act for preservation, and the contents of the preservation act include not only the actual preservation act, but also the right to claim the removal of interference based on the right to share and the right to claim the return of the jointly owned property (see Supreme Court Decision 98Da61746, May 11, 1999). There is no evidence to prove that the Defendant installed the pressure room of this case with the consent of the co-owner of the apartment of this case, including the plaintiffs, and since the plaintiffs, who are some co-owners of the site of this case, seek removal of the pressure room of this case against the defendant as a claim for removal of interference based on the right to share. Thus, it is examined as to whether the removal

Since the act of preserving jointly-owned property is a factual act aimed at preventing the destruction or damage of the jointly-owned property and maintaining its phenomenon, each co-owner's act of preserving such jointly-owned property alone is due to the fact that there are many cases where preservation is urgently required and that it would be beneficial to the other co-owners, and therefore, if the result of one co-owner's exercise of the right to preserve property conflicts with the interests of the other co-owners, such act shall not be deemed an act of preserving the property (see Supreme Court Decision 93Da54736, Apr. 7, 1995).

The plaintiffs are merely some co-owners of the site of this case, and there is no dispute between the parties as to the fact that the pressure room of this case is a facility for the stable supply of urban gas to the apartment of this case and neighboring apartment. However, in the case of moving to another place after removing the pressure room of this case, the defendant bears additional costs, such as the cost for the removal of pressure facilities and the installation cost of pipes for the supply of urban gas. Thus, it seems that the defendant can demand the sectional owners to share the installation cost pursuant to Article 19-2 of the Urban Gas Business Act, Article 19-2 of the Urban Gas Supply Regulation (A evidence 10), Article 7 of the Urban Gas Business Act, and Article 19-2 of the Urban Gas Supply Regulation (A evidence 10), so it is difficult to view that the owner of the apartment of this case who is supplied with urban gas is obliged to install alternative facilities prior to the removal of the site of this case at the request of the plaintiffs, and it is difficult to view that the defendant's removal of the above apartment site of this case may not affect the sale of this case.

The plaintiffs asserted to the effect that the consent of sectional owners was obtained due to the resolution of the council of occupants' representatives. While the council of occupants' representatives of the apartment of this case was deemed to have practically played a role as a management body, the council of occupants' representatives is not a management body or manager of the apartment of this case, but a third party who illegally occupies the site of the common area of the apartment of this case or the building owned by the sectional owners, not a legal relation that belongs to the sectional owners, but a right that each sectional owner is entitled to exercise as it is based on the co-ownership right of common area, etc. (see Supreme Court Decision 2003Da17774, Jun. 24, 2003). Since the resolution of the lawsuit of this case was adopted by the council of occupants' representatives, it cannot be deemed that the request for removal is an act of preserving the building due to the conflict of interests with other sectional owners, or that the majority of sectional owners under the Act

Therefore, the plaintiffs who are only some co-owners of the apartment of this case filed a claim against the defendant for the removal of the pressure room of this case and the delivery of the site of this case, by asserting that they are acts of preserving the jointly owned property.

3. Conclusion

Therefore, the plaintiffs' claims in this case are dismissed for all reasons, and the judgment of the court of first instance differs from this conclusion, so the defendant's appeal is accepted and the judgment of the court of first instance is revoked, and all of the plaintiffs' claims against the defendant are dismissed. It is so decided as per Disposition.

[Attachment]

Judges fixed-day (Presiding Judge)