Whether a management body under the Act on the Ownership and Management of Aggregate Buildings may claim management expenses for common areas to the sectional owner who is the person liable to pay such management expenses when there is no management body regulations, etc. in force for the collection of management expenses (affirmative)

Article 17 of the Act on the Ownership and Management of Aggregate Buildings provides that "Each co-owner shall bear the expenses for the management of the section for common use and other obligations according to the ratio of his/her share, unless otherwise specified by the regulations," and Article 25 (1) provides that "the manager shall have the authority and duty to act for the preservation, management, and change of the section for common use, to claim and receive the expenses for the management of the affairs of the management body, and to act for the management of the money to each sectional owner, and to act for the management of the money." Accordingly, even though the management body does not have the management body regulations effective for the collection of the management fee, it is reasonable to deem that the management fee for the section for common use at least can be claimed against the sectional owner who is the obligor for the management fee.

Articles 17 and 25(1) of the Act on the Ownership and Management of Aggregate Buildings

Plaintiff

Defendant (Law Firm Barun, Attorneys Park Jong-ju et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2008Na4391, 4407 Decided February 5, 2009

The appeal by the Defendant (Counterclaim Plaintiff) against the part on the counterclaim extended by the lower court is dismissed. The remainder of the part on the counterclaim of the lower judgment is reversed, and that part of the case is remanded to the Incheon District Court Panel Division.

1. Judgment ex officio as to the legitimacy of the appeal on the part of the counterclaim claim expanded by the original judgment

In a case where a claim is expanded in the appellate trial, the appellate court shall judge the extended claim as the first instance court in substance. Thus, the first instance court ruled that "the plaintiff's claim is dismissed" while rejecting the existing claim, and the appellate court merely rejected all the existing claim and the extended claim in the appellate trial, it must indicate the order that "the plaintiff's claim is dismissed." In addition, the appellate court must indicate the order that "the plaintiff's claim is dismissed." On the other hand, in order to clarify the court's decision, the conclusion should be stated in the text in order to determine whether there is omission of judgment. Thus, even if the court's decision states that the claim is not reasonable, it shall be deemed that the judgment is omitted unless there are any special circumstances, unless it states that there is a lack of judgment, and the part of the lawsuit is still pending in the appellate court and thus, it is not the object of appeal (see, e.g., Supreme Court Decision 2006Da28256, Aug. 23, 2007).

According to the records and reasoning of the judgment of the court below, in the first instance court, the defendant (the plaintiff, the plaintiff, the designated party, the plaintiff, the plaintiff (the plaintiff, the designated party, the plaintiff) filed a counterclaim with the defendant, "61,273,637 won, the designated party shall jointly and severally with the plaintiff, and the non-party shall pay 41,886,409 won out of the above amount and 20% interest per annum from the day following the delivery of the duplicate of the counterclaim to the day of complete payment." The court of first instance dismissed the judgment. The defendant appealed and appealed against this, and the defendant appealed the claim for the counterclaim at the second day of the court below's second day of pleading that "the plaintiff, the plaintiff, the plaintiff, the designated party, and the non-party shall be jointly and severally with the plaintiff about the above amount, and the non-party shall be jointly and severally notified of the fact that the defendant did not pay the above amount at least 20% interest rate of 10% interest per annum of the defendant's counterclaim and 208% interest per annum."

Therefore, in light of the above legal principles, the court below omitted the judgment on the counterclaim extended at the court below, and therefore, this part of the counterclaim is still pending in the court below and it is not the object of appeal. Thus, the defendant's appeal on this part is unlawful and dismissed.

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

According to the reasoning of the judgment below, the court below, after compiling the adopted evidence, found the facts as stated in its reasoning, determined that the management body rules established by the defendant did not meet the requirements for establishing the rules under Article 29 (1) of the Act on Ownership and Management of Condominium Buildings (hereinafter “the Act”), and therefore, the rules on collecting management fees established by the defendant as delegated by the management body rules also have no effect.

In light of the records, the above fact-finding and judgment of the court below are just, and the defendant's ground of appeal can not be viewed as valid only because the above management body rules meet the requirements for the establishment of regulations, or valid by implied consent or ratification of sectional owners.

The court below did not err in the rules of evidence or in the misapprehension of legal principles or incomplete hearing, as alleged in the grounds of appeal.

3. As to the assertion of misapprehension of legal principles as to the burden of management expenses under the Aggregate Buildings Act

According to the reasoning of the judgment below, with respect to the Plaintiff and the Nonparty (hereinafter “Plaintiff, etc.”) who acquired the ownership of Nos. 554, 561, and 565 (hereinafter “each of the instant condominiums”) among the instant condominiums, the lower court determined that the Defendant could not seek the payment of the management fees against the Plaintiff, etc., insofar as the Defendant’s regulations and the regulations on the collection of the management fees, which are the grounds for the collection of the management fees for the sectional owners of the instant condominiums, are not effective, as the former owners of each of the instant condominiums, seeking the payment of the management fees for common areas in arrears and the management fees imposed on each of the instant stores after the acquisition date

However, we cannot accept the above determination by the court below for the following reasons.

Article 17 of the Aggregate Buildings Act provides that "Each co-owner shall bear the expenses for the management of the section for common use and other obligations according to the ratio of his/her share, unless otherwise provided by the regulations," and Article 25 (1) provides that "the manager shall have the authority and duty to claim and receive the expenses for the preservation, management and change of the section for common use, the expenses for the management of the section for common use and for the execution of the affairs of the management body, and to manage the money thereof to each sectional owner." Accordingly, even though there is no management body regulation, the defendant, who is the management body under the Aggregate Buildings Act, has no management body regulation, etc. in force for the collection of management fees for the section for common use pursuant to Article 25 (1) of the Aggregate Buildings Act, it shall be reasonable

Therefore, the court below should further examine which portion of the management expenses imposed on the former owner or the plaintiff, etc. of each of the stores in this case constitutes the management expenses for common areas, and determine that the corresponding management expenses should be borne by the plaintiff, etc., or borne directly. Furthermore, in the case of the management expenses not falling under the management expenses for common areas among the management expenses imposed on the plaintiff, etc. after the plaintiff, etc. acquired the ownership of each of the stores in this case, it should have judged whether the plaintiff, etc. is liable for the payment by examining whether there are special circumstances to recognize the obligation to pay the management expenses, but the defendant cannot seek the payment of the management expenses against the plaintiff, etc. on the ground that there is no validity of the defendant's management organization regulations, etc. In so determining, the court below erred by misapprehending the legal principles on the

4. Conclusion

Therefore, the defendant's appeal as to the part of the counterclaim extended by the original judgment is dismissed, and the remaining part of the judgment of the court below concerning the counterclaim is reversed, and this part of 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 Lee Hong-hoon (Presiding Justice)