Plaintiff

Defendant Management Body (Law Firm Deputy Penalty Law Office, Attorneys Transferred-won et al., Counsel for the defendant-appellant)

January 15, 2009

Incheon District Court Decision 2007Gadan21810 Decided February 5, 2008

1. All appeals filed by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) against the instant principal lawsuit and counterclaim are dismissed.

2. The costs of appeal shall be borne by each party.

1. The plaintiff (the counter defendant, the designated party);

The judgment of the first instance is revoked. The Defendant’s counterclaim claim by the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is dismissed. The Defendant paid 35,710,200 won to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and 15,249,950 won to Nonparty 1 (the Nonparty in the judgment of the Supreme Court) and 20% interest per annum from the day following the delivery of the duplicate of the complaint of this case to the day of complete payment, and the Defendant paid 2,68,750 won to the Plaintiff from July 28, 2008 to the end of each month from the day of delivery of the copy of the complaint of this case, and the Defendant paid 52,50 won to Nonparty 1 (the extension of the claim of this case to the Plaintiff at the end of each month from July 28, 2008 to the day of delivery of the copy of the complaint of this case).

2. Defendant-Counterclaim Plaintiff;

The judgment of the first instance court is revoked. The plaintiff's appeal is dismissed. The plaintiff is dismissed. The plaintiff is jointly and severally with the plaintiff about KRW 60,723,027 and each of the above amounts is paid 20% interest per annum from the day following the delivery of the copy of the counterclaim of this case to the day of full payment (the defendant extended the claim of the counter-claim of this case for the first instance).

1. Judgment on the plaintiff's main claim

A. The parties' assertion

The plaintiff and the representative non-party 1 (hereinafter "the plaintiff et al.") purchased the 52, 54, 55, 55, 561, and 565 of the 5th floor from among the buildings listed in the attached Table (hereinafter "the aggregate building of this case"), which are an aggregate building, at around November 2006 and around December 2006, and completed the registration of ownership transfer at each auction procedure. The defendant occupied each of the stores of this case and obstructed the entry and use of each of the stores of this case by the plaintiff et al. on the grounds that the former owner's management fees are delinquent. Thus, the defendant is obligated to compensate the plaintiff et al. for damages equivalent to the fees for each of the stores of this case.

In this regard, the Defendant did not interfere with the entry and use of each of the instant stores. However, each of the instant stores existed in the Ptecot of the instant condominiums, and the Plaintiff asserted that, at the time of the purchase of each of the instant stores, other stores in Ptecot were in the state of suspending their business, and that there was only a fact that the Plaintiff was not conducting its business on its own due to the fact that the Plaintiff was unable to independently conduct its business.

B. Determination

The records and images of evidence Nos. 7-1, 2, 8, 9, and 25, and the result of the on-site inspection by this court are insufficient to recognize the fact that the defendant interferes with the entry and use of each shop of this case by the plaintiff, etc., and there is no other evidence to acknowledge this. Thus, the plaintiff's claim of the principal lawsuit is without merit without any need for further examination.

2. Judgment on the defendant's counterclaim

A. The parties' assertion

The defendant asserts that the defendant is a management body consisting of all sectional owners of the building of this case under the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act"). The plaintiff et al. acquired the ownership of each of the stores of this case around November 7, 2006 and around December 7, 2006. Accordingly, since the former owner of each of the stores of this case succeeded to the obligation of common area management expenses in arrears, the plaintiff et al. is liable to pay the above delinquent management expenses and the management expenses after the date of acquisition of ownership.

In regard to this, the plaintiff asserts that the defendant is not a management body legally organized under the Aggregate Buildings Act, and that the defendant is not obligated to pay management expenses to the defendant, and that the defendant's obligation to pay management expenses was extinguished as long as there was interference with the entry and use of each store of

B. Determination

(1) Thus, we first examine whether the defendant is entitled to collect management expenses from the plaintiff as a management body legally organized pursuant to the Aggregate Buildings Act. According to the Aggregate Buildings Act, if the relationship of sectional ownership is established with respect to a building, the sectional owner should organize a management body, the purpose of which is to manage the building and its site and its accessory facilities, as a whole (Article 23(1)). In this case, the management body is not an organization established only through any organizational act but a building is established, and if the relationship of sectional ownership is established, it is naturally constituted by all sectional owners. Thus, if the sale of an aggregate building commences and the occupancy of an aggregate building results in the necessity of joint management, a management body consisting of all sectional owners, including the sectional owners of the unsold section of exclusive ownership at the time (see Supreme Court Decision 2003Da45496, Nov. 10, 2005, etc.).

(2) Meanwhile, according to each statement of evidence Nos. 1 through 16 (including branch numbers), Defendant management body, as a management body of the instant aggregate building, convened a management body meeting on November 18, 2003 for the enactment of the regulations of the management body and the appointment of management body members, convened on November 25, 200, and convened for the adjournment, and decided 54.8% of sectional owners (51 out of 93 persons total), 8.6% of voting rights (26,898.40m2, whichever is 23,831.92m2 of the management body), as well as 86.4% of voting rights, appointed non-party 2 as a management body, and elected the representative of each floor (which does not appear in comparison with the records) as management expenses for the aggregate building, and the fact that each of the management body imposed management fees and management fees for the aggregate building by resolution for the imposition of management expenses for the management body of the Act No. 2000, Jan. 15, 2004>

(3) Examining the above legal principles and factual relations, in a case where there is a building which constitutes a sectional ownership relationship, the Defendant management body is naturally an organization established with all sectional owners as members, and the Defendant management body is established automatically. However, separate from the establishment of the Defendant management body, the grounds for collecting management fees from each occupant of the Defendant management body arose from the management body’s rules (Articles 50 and 51) and the detailed rules on the imposition and collection of management fees delegated by the former. In this regard, the Act on Aggregate Building provides that the establishment, amendment, and repeal of the regulations shall obtain the consent of at least 3/4 of the sectional owners and voting rights at the management body meeting (the main sentence of Article 29(1)). The enactment of the regulations requires the consent of at least 3/4 of the sectional owners and voting rights.

However, as seen earlier, 8.6% (26,898.40m2, 23,831.92m2) of the voting rights at the time of the establishment of the rules by Defendant management body meeting the above requirements. However, only 54.8% (51 of the total number 93m2) of the sectional owners did not meet the above legal quorum, and Article 29 of the above Act is a mandatory provision in nature. Since the procedures for the establishment of the rules by Defendant management body are contrary to the above Acts, and therefore, the rules by Defendant management body on the imposition of management fees delegated by them are invalid, as long as the rules by Defendant management body violate the mandatory provisions, and thus, the rules on the imposition of management fees are invalid.

(4) Therefore, insofar as the grounds for collecting the management expenses do not have effect as they violate the mandatory law, the defendant management body cannot seek the payment of the management expenses against the plaintiff. Thus, with respect to the defendant's counterclaim claim, it is without merit without further examining the amount thereof.

3. Conclusion

Therefore, all claims for the principal lawsuit and counterclaim of this case shall be dismissed as they are without merit. The judgment of the court of first instance is just in conclusion, and all appeals against the principal lawsuit and counterclaim of this case are dismissed. It is so decided as per Disposition by the assent of all.

[Attachment Selection List and each omission of Indication of Building]

Judges Choi Jong-dae (Presiding Judge)