Plaintiff (Attorney Song-chul et al., Counsel for the plaintiff-appellant)

Pream Co., Ltd. and one other (Law Firm citizen, Attorney Lee Young-hoon, Counsel for the plaintiff-appellant)

May 1, 2019

Suwon District Court Decision 2017Kadan103496 decided April 27, 2018

1. All appeals by the Defendants are dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

The Defendants, with respect to the portion of “B” 18.2 square meters on the ship, which connects each point to each of the items listed in the separate sheet No. 10, 11, 12, 13, 14, 15, and 10 among the real estate listed in the separate sheet No. 1 on the attached sheet No. 2, with respect to the part of “B” indicated in the separate sheet No. 2, 2.13 meters in the glass door at the entrance of the line, which connects 2, 8 in sequence, the part of “B” indicated in the separate sheet No. 2, 7, and 10 in sequence, shall be removed, and the part of the board No. 2.13 meters in line connected 7,10 in sequence with “B” indicated in the same map No. 2. 13 meters in line

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning of this court’s judgment is as follows: (a) the part concerning the facts of recognition of Article 2(1) of the judgment of the court of first instance is dismissed as set forth in the following 2.; and (b) the reasoning of the judgment of the court of first instance is as stated in the reasoning of the judgment, except for those cases as set forth in the following 2.

2. Parts used or added;

○ Parts (Recognitions) of the dried

A. Real estate listed in the attached list, which is an aggregate building (hereinafter “instant building”), is a commercial building of the size of two underground floors and seven above ground, located on the road side of the market. The Plaintiff is a sectional owner of the first floor, the first floor, the Defendant 2, and the Defendant sampling Co., Ltd. (hereinafter “Defendant Co., Ltd”) are sectional owners of the first floor below ground.

B. Meanwhile, the part of “bb” part of the building of this case, which was connected with each point of the attached Table 1 No. 10, 11, 12, 13, 14, 15, and 10 of the building of this case, is composed of the corners of the first floor of this case, along with the first floor No. 12 and 13, and the first floor No. 12, and the right side part of “A” of the part in this case is in contact with the Plaintiff’s stores No. 1 of the first floor, and Defendant 2’s left side part is in contact with Defendant 12’s stores.

The dispute portion of this case is included in the aggregate building ledger in toilets, stairs rooms, corridors and other areas, which are common areas, and has been used as a stample, corridor and stairs for access to the underground floor from the time of construction to the time of 200.

C. However, the Defendant Company leased the part of the dispute in this case to Defendant 2. The Defendants installed a glass door of 2.13 meters in length on the line connecting the part of “1” indicated in the annexed drawings 2 and 8 among the parts in the dispute in this case, which were used as the front or corridor, and among the parts in the dispute in this case, installed a glass door of 2.13 meters in length on the line connecting the part of “2.13 meters” indicated in the same drawings with the part of “2.7 and 10 successively connected to the part of “2.13 meters” indicated in the same drawings, and installed a board of 2.12 meters in length (hereinafter referred to as “c.” in each glass door, each panel, etc.), and maintained the remainder of the stairs.

Defendant 2, while operating a studio 12 shop at the 12th floor, uses the part of the dispute of this case as part of the store of this case due to the 12th floor, such as the studio of the dispute of this case, or the studio of the board on the upper part of the subordinate stairs.

[Reasons for Recognition] Facts without a partial dispute, Gap evidence 1 to Gap evidence 6, Eul evidence 3 to Eul evidence 7-6, video and the purport of the whole pleadings

○ Additional Parts

A. Summary of the defendants' assertion

(1) The dispute portion of this case is the section for partial common use provided only by the sectional owners of the first floor underground for common use.

(2) Even if the dispute portion in the instant case is the entire common area, there was a resolution that changed from the written meeting of sectional owners to the entire common area in accordance with Article 14, Article 15, Paragraph (1) of the Aggregate Buildings Act around 192 to the partial common area.

(3) Therefore, the Plaintiff, who is not a sectional owner of the first basement, is not entitled to seek removal and delivery of the dispute of this case, and the Defendant Company, the sectional owner of the first basement, and its lessee, and Defendant 2, the lessee, are entitled to independently occupy the dispute of this case.

B. Determination

(1) Whether the part in the dispute in this case is the section for partial common use

Therefore, Article 10 (1) of the Aggregate Buildings Act provides that "the section for common use belongs to the co-ownership of all sectional owners: Provided, That the section for common use which is obviously provided only to the co-ownership by some sectional owners belongs to the co-ownership of all sectional owners." (hereinafter "total section for common use," and the section for common use provided only to some sectional owners, which is provided for the co-ownership by some sectional owners, is referred to as "part for common use," and the issue of which part is provided for the co-ownership of all or some of the sectional owners, shall be determined by the objective use according to the structure of the building unless special agreement is reached between all or some of the sectional owners (see, e.g., Supreme Court Decisions 89Da1497, Oct. 27, 1989; 94Da9269, Feb. 28, 1995; 2015Da2775, May 27, 2016).

In full view of the following facts, Gap evidence 2 through Gap evidence 4-2, Gap evidence 7-1 through 3, Eul evidence 2-2 through Eul evidence 7-7, and the purport of the whole pleadings as to each of the results of the measurement and appraisal commissioned to the Vice Governors of the first instance court as to the Korea Land Information Corporation of the first instance court, the following facts may be acknowledged.

① The instant building obtained approval for use on February 25, 1987. The dispute part of the instant building, which is the corner of the first floor on the ground, and both the first floor 12 and the first floor 13 were included in the area of the toilet, stairs room, corridor, and other areas, which are common areas at the time of registration in the initial collective building ledger.

However, on March 22, 1990, the one story 13 No. 8.1 square meters was changed to a retail store on which the purpose of use was changed to a section for exclusive use. On December 17, 1993, the alteration of use was made to a neighborhood living facility (retail store) with the first story 12, 17.805 square meters and the part for exclusive use was changed to a section for exclusive use. Accordingly, only the dispute portion in the instant case remains as a section for common use (the Plaintiff asserted that the Defendant Company, after filing an application for conversion to a section for exclusive use with the competent authority with respect to the dispute in the instant case, was rejected on the ground that it is an unexclusive section for common use. Accordingly, the Defendant Company did not give any answer

② In the aggregate building register of the instant building, the area of common areas on the first floor of the instant building, including the instant dispute portion, is indicated as the area of common areas on the first floor owned by the Plaintiff, which is 7.173 square meters divided and calculated in proportion to the area of the Plaintiff’s exclusive ownership.

③ In addition, at the time of the registration of the aggregate building register of the instant building, the said building was connected to the toilets for common use of the first floor, stairs rooms, and corridors, etc. On March 22, 1990, when the said building was turned down to the first floor through the stairs connected to the instant dispute part. The structure was that the said section for common use of the first floor was able to access the second floor to the second floor to the second place of the same floor that is able to enter the second to the seventh floor above the ground. However, the said section for common use of the first floor was 349.85 square meters on March 22, 1990.

Even from the date of construction to the date of 200, the part in the dispute in this case was continuously used as a hole, corridor, stairs, etc. for the entry of underground floors. However, around 200, the Defendant Company: (a) around 200, the lessee who leased the 1,2nd underground from the Defendant Company with the 1,000th underground floor operated a bath and soup bath business at that place; (b) closed the stairs connected to the 1st underground floor from the dispute in this case; (c) thereafter, Defendant 2, while running the 12th floor in this case and the part in the dispute in this case, used the wall installed between the 12th floor and the 12th floor in this case as part of the store in the 12th floor.

④ According to the design drawings at the time of approval for the use of the building of this case, stairs connected from the first floor to the second floor above ground through the dispute part above the building of this case were installed, but they seem to have been removed after modification of design.

⑤ The Defendant Company stated that the structure of stairs remains intact in consideration of the time when the type of business of the Defendant Company would be changed, even though the stairs are temporarily closed among the dispute parts of the instant case, the type of stairs would be used.

According to the facts acknowledged above, the dispute part of this case was constructed as a passage to enter the second floor as well as the underground floor of the building of this case, with the structure of 12 and 13 of the first floor, and the section for common use of the first floor was actually used as a passage to enter the first floor of the building of this case, while the section for common use of the first floor was used as a passage to enter the second floor through the section for common use of the underground floor of the building of this case, and the defendant company itself recognized that the section for common use of the building of this case is to be used as an emergency exit, entrance, etc. according to the structural subsequent utilization of the building. Considering the structure of the building of this case, the part for common use of the building of this case is not only part of the section for common use of the first floor of the underground, but also the section for common use of the whole building of this case.

Therefore, this part of the Defendants’ assertion is rejected on the premise that the part of the dispute in this case is the section for partial common use.

(2) Whether the section for partial common use has been changed

Furthermore, as argued by the Defendants, in cases where the scope and contents of ownership of a sectional owner of an aggregate building exceeds a simple change in the usage relationship with respect to whether the dispute part of the instant case was changed to a partial common area by a resolution of the sectional owner around 192, as argued by the Defendants, it does not constitute a change in the common area under Article 15(1) of the Aggregate Buildings Act, and the consent of all sectional owners is required as well as the disposal and change of the common area under the Civil Act.

As to this case, since the dispute portion of this case is the whole common area, each sectional owner under Article 12 (1) of the Aggregate Buildings Act shares it in proportion to the size of his section for exclusive use. The alteration of the dispute portion of this case from the whole common area to the partial common area constitutes a case of changing the scope of ownership of the sectional owners as to the dispute portion of this case. Thus, the change of the common area under Article 15 (1) of the Aggregate Buildings Act does not constitute the change of the common area under Article 15 (1) of the Aggregate Buildings Act. Thus, the resolution of the management body's meeting on the change of the common area is insufficient,

Meanwhile, according to the statement in Eul evidence No. 1, at the time of May 1992, it can be acknowledged that the written meeting was resolved by a resolution of 11 among the 13 sectional owners of the building of this case, and of 3,772.57 square meters/4,639.49 square meters (81.31%) among the 13 sectional owners of the building of this case. The resolution of the resolution of the resolution of the resolution of the resolution of the resolution of the resolution of this case is that "the first floor, the opening part, and the HALL 36.1 square meters and retail store 8.1 square meters and 44.20 square meters are installed arbitrarily for the purpose of the sole use of the 349.85 square meters of the underground floor sales facility, and that the building of this case was installed independently for the purpose of convenience, and that there was no other evidence to acknowledge that there was a change in the part of the common use area of this case by all sectional owners."

Therefore, this part of the defendants' assertion is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is justified, and all appeals by the defendants are dismissed as it is without merit. It is so decided as per Disposition.

(attached Form omitted)

Judges Park Jae-ap (Presiding Judge)

1) The abbreviationd names established by the first instance judgment are used below the same.