In a case where: (a) the window installed on a rail of 15th floor in the vicinity of the apartment entrance owned by Company A was destroyed by a vehicle parked away from the window door due to a strong wind, and (b) the insurance company concluded the automobile insurance contract concerning the said vehicle had paid the insurance money at the vehicle repair cost; and (c) filed a claim for reimbursement against Company A, the case holding that Company B may not be liable for compensation against Company A pursuant to Article 758 of the Civil Act.

In a case where: (a) the windows installed on a rail of 15th floor nearby the apartment entrance door owned by Party A were destroyed by a vehicle parked behind the window due to strong wind, and (b) the insurance company concluded an automobile insurance contract on the said vehicle had paid the insurance money at the vehicle repair cost; and (c) filed a claim for reimbursement against Party A, the case held that Party B cannot be held liable for damages against Party A for damages under Article 758 of the Civil Act, in view of the following: (a) the above apartment building appears to have been managed through the management office by the council of occupants' representatives; (b) the above apartment building had already been installed before acquiring the ownership of the apartment; and (c) the entire apartment corridor installed with the same type of windows in the entire apartment corridor, the above window is the common area managed by the council of occupants' representatives; and (d) the occupant of the said window is reasonable to be deemed to be the council of occupants' representatives of apartment buildings; and (e) even if Party A owned the above window jointly with other occupants, insofar as there is no assertion or proof regarding the exemption of violating the duty of care on the management.

Article 758(1) of the Civil Act, Article 23(1) of the Act on the Ownership and Management of Aggregate Buildings, Article 682(1) of the Commercial Act

Cases Non-Life Insurance Co., Ltd. (Law Firm Democratic, Attorney Lee Ha-young, Counsel for defendant-appellant)

Defendant

Seoul Central District Court Decision 2017Gaso5602879 Decided July 6, 2017

November 23, 2017

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 2,813,00 won with 5% interest per annum from November 15, 2016 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The text shall be as shown in the text.

1. Basic facts

A. The Plaintiff is an insurer who has entered into an automobile insurance contract with respect to the vehicle (vehicle number omitted) (hereinafter “Plaintiff-vehicle”). The Defendant is the owner of the entire city ( Address omitted), apartment (hereinafter “instant apartment”) ○○○○○-dong △△△△△△△△△△.

B. The apartment building of this case is on the 1st underground floor and the 15th ground floor, and each floor has a so-called “hallway-type apartment building” structure that allows access to each section of exclusive use through a public corridor. Since before December 26, 2014, the Defendant acquired the ownership of the ○○○dong △△△△△△△△△△△△△ apartment of this case, the above corridor-type apartment of this case had a window and a glass window so as to block wind or noise flowing from the outside.

C. On August 29, 2016, around 17:20, the Plaintiff’s vehicle was parked in the instant apartment building parking zone on the surface of the corridor located in the instant apartment building, but the windows installed in the vicinity of the △△△△△△△ Factory entrance, owned by the Defendant on the 15th floor (hereinafter “instant windows”), left the window from the window due to strong wind, and was destroyed by the Plaintiff’s vehicle.

D. On November 14, 2016, the Plaintiff paid insurance proceeds of KRW 2,813,000 at the repair cost of the Plaintiff’s vehicle.

[Grounds for Recognition] Unsatisfy, each entry or video of Gap evidence 1 to 7, the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The Defendant, as the possessor or owner of the window of this case, is liable for all damages incurred by the owner of the Plaintiff’s vehicle due to any defect in the installation and preservation of the window of this case, which is a structure, pursuant to Article 758(1) of the Civil Act. The Defendant was exempted from its liability due to the Plaintiff’s insurance money, and thus, the Plaintiff is liable for reimbursement of KRW 2,813,000 and delay damages equivalent to the above insurance money

B. Determination

The possessor of a structure under Article 758 (1) of the Civil Act refers to a person who has the authority and responsibility to repair and manage a structure in order to prevent various accidents that may arise from defects in the installation or preservation of the structure in fact (see Supreme Court Decision 2000Da386, Apr. 21, 2000). The management body of an aggregate building under Article 23 (1) of the Act on the Ownership and Management of Aggregate Buildings is naturally established as an organization of sectional owners whose purpose is to carry out projects concerning the management of the sectional ownership of a building and its site and its incidental facilities by making all sectional owners as members, even if there is no organizational act, and as long as the management body has been actually organized and its autonomous management has commenced, the authority and responsibility for the management of the sectional ownership belongs ultimately to the management body (see Supreme Court Decision 97Da19625, Aug. 29, 197, etc.).

According to the purport of the statement and the purport of the evidence No. 5, the apartment building of this case is deemed to have been managed by the council of occupants' representatives through the apartment management office of this case. As seen earlier, the apartment building of this case is deemed to have already been installed before the Defendant acquired the ownership of △△△△△△, Dong, and all of the corridors of this case installed the window in the same form as the window of this case. In light of the above, since the window of this case is the common area managed by the council of occupants' representatives of the apartment of this case, it is reasonable to view that the occupant of the apartment of this case is the council of occupants' representatives of the apartment of this case. The statement of evidence No. 4 and No. 7 alone is insufficient to recognize that the Defendant is the possessor of the apartment building of this case, and there is no other evidence to acknowledge this. Accordingly, the Plaintiff's assertion based on the premise that the Defendant is the possessor of the apartment building of this case, without any justifiable reasons, on the remainder of the point of view.

In addition, according to Article 758(1) of the Civil Act, a person who suffers damage due to a defect in the installation and preservation of a structure may seek damages from the possessor of the structure first and then seek damages from the owner of the structure, only if it is proved that the possessor of the structure has not neglected due care necessary for the prevention of damage and has not neglected to do so. Even if the defendant jointly owns the window of this case, which is the common area, with other occupants, the owner of the apartment of this case, unless there is any assertion or proof as to the fact that the council of occupants' representatives of the apartment of this case, which is the owner of the window of this case, has been exempted from liability due to the lack of a breach of the duty of care for the management, the plaintiff cannot be held liable for damages against the defendant pursuant to Article 758 of the

3. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the plaintiff's claim is revoked and dismissed.

Judges Kim Jong-young (Presiding Justice)