[1] Whether the management fee in arrears is succeeded to the special successor pursuant to the management rules (=the succession to the common area only) by the former occupant of an aggregate building

[2] Whether the late payment charge on the management fee for the section for common use is included in the management fee for the section for common use succeeded by the special successor (negative)

[3] Meaning of “a claim stipulated within a period of less than one year” under Article 163 subparag. 1 of the Civil Act, which is required for the short-term extinctive prescription of three years from the Civil Act, and whether the management expenses claim for an aggregate building, which is paid on a monthly basis,

[1] Articles 18, 28(3), and 42(1) of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 18 of the Act on the Ownership and Management of Aggregate Buildings / [3] Article 163 subparag. 1 of the Civil Act

[1] [2] Supreme Court Decision 2004Da3598, 3604 decided Jun. 29, 2006 (Gong2006Ha, 1397) / [1] Supreme Court en banc Decision 2001Da8677 decided Sep. 20, 2001 (Gong2001Ha, 2258) / [3] Supreme Court Decision 79Da2169 decided Feb. 12, 1980 (Gong1980, 12649), Supreme Court Decision 96Da25302 decided Sep. 20, 196 (Gong196Ha, 3145)

Plaintiff Co., Ltd. (Law Firm Defin, Attorneys Oh Jeong-seok et al.)

Defendant (Attorney Kim Yong-sub, Counsel for defendant-appellant)

Daejeon High Court Decision 2005Na3449 Decided October 7, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

1. Regarding the scope of succession to delinquent management expenses

In light of Article 28(3) of the Act on the Ownership and Management of Aggregate Buildings, which provides that the management rules shall not prejudice any right of a person other than a sectional owner, even if the special successor can exercise the right to the entire claim for the unpaid management fees, the management rules shall not be effective unless the special successor explicitly and explicitly approves the management rules, and the provisions of Article 42(1) of the Act on the Ownership and Management of Aggregate Buildings provide that the special successor shall not be obliged to pay the delinquent management fees to the transferee of the former tenant under the management rules shall be deemed to have been effective for the management rules, and it shall be reasonable to interpret the provisions of Article 28(3) of the Act on the Ownership and Management of Aggregate Buildings, which provide that the special successor shall not be obliged to pay the delinquent management fees to the successor of the former tenant under the management rules, which goes beyond the limits of establishment of the management rules, which are self-governing rules, and shall not be deemed to have been effective for the succession of the former tenant's interests to the management fees for common areas.

After compiling the selected evidence, the court below acknowledged the facts as stated in its decision. The defendant, a special successor to the real estate of this case, succeeded only to the management fee for common areas among the delinquent management fee for the non-party corporation, the former tenant of the aggregate building, notwithstanding the management agreement for the aggregate building to which the real estate of this case belongs, and did not succeed to the management fee for the section for exclusive use. In light of the records and the above legal principles, the court below's findings and

2. As to the succession of the late payment charge

The late payment charge imposed when the payment of the management fee is overdue is a kind of penalty, and the special successor of an aggregate building succeeds to the delinquent management fee for common areas and does not succeed to the legal effect that has already occurred due to the failure of the former tenant to pay the management fee. Thus, the late payment charge for the management fee for common areas is not included in the management fee for common areas succeeded to the special successor of an aggregate building (see Supreme Court Decision 2004Da3598, 3604, Jun. 29, 2006).

The lower court determined that the late payment charge that was incurred on the management fee in arrears by the non-party corporation, the former occupant of the instant real estate, could not be deemed succeeded to the Defendant, the special successor to the instant real estate, notwithstanding the provisions of the management rules on the aggregate building to which the instant real estate belongs. In light of the records and the above legal principles, the lower court’s findings of fact and determination are justifiable, and there is no error of law such as misapprehending the legal principles on the scope of the delinquent management fee succeeded to, and failing to exhaust all necessary deliberations on the late payment

3. As to the extinctive prescription

A. Article 163 Subparag. 1 of the Civil Act provides that “a claim determined within a period of less than one year” that takes the short-term extinctive prescription of three years means a claim that is regularly paid within a period of less than one year (see Supreme Court Decision 96Da25302, Sept. 20, 1996) and that is paid every one month, constitutes a claim for management expenses of an aggregate building.

Therefore, the judgment of the court below which partially recognized the defendant's defense of extinctive prescription is just, and there is no error in the misapprehension of legal principles as to the legal nature of the management fee claim.

B. According to the records, the defendant agreed to adjust the delinquent management expenses to the plaintiff's employees and the court's ruling on January 2004, and each fact that the defendant knew that there was the delinquent management expenses of the pre-owner prior to the acquisition of the real estate of this case, but this alone does not constitute a waiver of the benefits of extinctive prescription or a defendant's defense of extinctive prescription does not constitute an abuse of rights. Thus, the court below's decision was omitted, incomplete hearing, incomplete hearing, non-exercise of the right to ask for explanation, the principle of good faith and abuse of rights cannot be accepted.

4. Conclusion

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

Justices Kim Young-ran (Presiding Justice)