Plaintiff limited liability company (Law Firm continental, Attorneys Inn Sang-soo et al., Counsel for the plaintiff-appellant)

Defendant Management Body (Attorney Lee Jae-soo, Counsel for defendant-appellant)

November 7, 2003

Seoul District Court Decision 2001Gahap6548, 2001Gahap7671 Delivered on December 26, 2002

1. The judgment of the court of first instance is modified as follows, following the extension of the defendant (Counterclaim Plaintiff)’s counterclaim claim by this court:

A. It is confirmed that, between the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff), the Defendant did not have the management expenses liability for the eight-story floor of Yeongdeungpo-gu, Seoyang-gu, Seoyang-gu, Seoyang-gu, 972, Seoyang-gu, Seoyang-gu, the 972, Seoyang-gu.

B. The Plaintiff (Counterclaim Defendant) paid 87,705,421 won to the Defendant (Counterclaim Plaintiff) and 5% per annum from November 26, 2001 to December 12, 2003, and 20% per annum from the next day to the full payment date.

2. The Plaintiff (Counterclaim Defendant)’s remainder of the principal lawsuit and the remainder of the Defendant (Counterclaim Plaintiff) are all dismissed.

3. The total cost of a lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder by each of the Defendant (Counterclaim Plaintiff).

4. Among the parts ordering the payment of the amount under paragraph (1), the portion for which no provisional execution is declared by the first instance court may be provisionally executed.

1. Purport of claim

The principal lawsuit: (a) confirm that the Plaintiff’s default management expenses liability against the Defendant does not exist with respect to the eight storys of Yeongdeungpo Building between the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff, hereinafter “Defendant”), and the Defendant shall pay to the Plaintiff 86,356,000 won and its equivalent at the rate of 25% per annum from the day following the date of delivery of a copy of the complaint of this case until the date of full payment.

Counterclaim: The plaintiff shall pay to the defendant 216,658,962 won and the amount equivalent to 5% per annum from November 26, 2001 to the rendering of the judgment of this case, and 20% per annum from the next day to the full payment day (the defendant extended his claim for counterclaim to the court of this case).

2. Purport of appeal

The part of the judgment of the first instance against the plaintiff shall be revoked.

The plaintiff and the defendant confirm that there is no 30,496,049 won for the delinquent management expenses for the defendant with respect to the eight floors of Young Fran building, and the defendant shall pay to the plaintiff 86,356,000 won and the amount equivalent to 25% per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

Defendant: Revocation of the part against Defendant in the judgment of the first instance.

All of the claims filed by the plaintiff are dismissed, and the plaintiff shall pay to the defendant 86,335,222 won and 5% per annum from November 26, 2001 to December 26, 2002 and 25% per annum from the next day to the date of full payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in light of the overall purport of the pleadings in each of the Gap evidence No. 1 (Distribution Schedule), Gap evidence No. 2 (Verification of Full Payment of Successful Bidder), evidence No. 3-1 through 16 (each certified copy), Eul evidence No. 3-42 (each certified copy), and Eul evidence No. 3-3 through 42 (each statement of imposition of management expenses, calculation general statement, and statement of accounts).

A. The defendant is a non-corporate body with the aim of implementing the project on the management of buildings in the Soyang-gu, Solar-dong, 972 Young-gu, Soft-dong, 172, and its site and its accessory facilities under the Multi-Unit Residential Building Act (hereinafter referred to as the "Building Act").

B. On April 20, 1999, the auction procedure was initiated on April 20, 199 with respect to the above (801 to 816, the 8th whole floor of the above (the real estate in this case), which was owned by the non-party Solar Co., Ltd. (hereinafter the real estate in this case) by the government branch of the Seoul District Court on April 20, 199, and the plaintiff was awarded a successful bid on April 9, 2001 and completed the registration of ownership transfer in the name of the plaintiff on May 18, 2001.

C. From June 1, 1998 to April 8, 2001, the plaintiff did not pay management expenses for the real estate of this case to the defendant, and the non-party corporation paid 176,003,302 won in total, including unpaid management expenses and late payment charges of KRW 167,62,162, and late payment charges of KRW 8,381,140, as shown in the attached Form, before acquiring the ownership of the real estate of this case. The plaintiff did not pay 38,719,660, and late payment charges of KRW 1,935,905,650 to the defendant from April 9, 2001 when the plaintiff acquired the ownership of the real estate of this case until October 19, 201 (the time when the plaintiff was able to use and profit from the real estate of this case).

2. Determination as to a claim for confirmation of absence of the management expenses in arrears and a counterclaim among the principal claim

A. Determination as to whether to succeed to the delinquent management expenses of Sora, Inc.

(1) Article 42 of the Aggregate Buildings Act provides that the effect of the regulations shall also be effective for the special successor of the former sectional owner. Article 42 of the Act provides that the effect of the regulations shall also be effective for the successor of the former sectional owner. Article 4 Paragraph 7 of the Act provides that Article 21 Paragraph 7 of the Management Rules provides that the special successor shall succeed to the delinquent management fees of the former sectional owner. This is based on the premise that the special successor succeeds to the delinquent management fees of the former sectional owner.

(2) However, the fact that the management rules are effective for the special successor of the sectional owner in the Act on the Ownership and Management of Aggregate Buildings shall be deemed to have the rights and obligations under the management rules after the management rules become effective for the special successor of the sectional owner, and the successor shall not be deemed to have included the succession of the delinquent management fees for the previous sectional owner, and the matters concerning the succession of delinquent management fees shall not be deemed to have been effective unless the special successor explicitly or implicitly approves the management rules, as they exceed the limits of the enactment of the management rules, which are autonomous rules, due to the rights and obligations between the persons other than the sectional owners. However, the common areas of an aggregate building are provided for the benefits of the entire sectional owner, and the maintenance and management of the common areas of an aggregate building are necessary for the maintenance and management of the aggregate building as well as the common areas, and therefore, the claims between the sectional owners in relation to the expenses necessary for its maintenance and management are required to guarantee them in particular, so that the special provisions of Article 18 of the Act shall be applied to the special successor of the previous sectional owner.

(3) According to the evidence Nos. 3 through 42-1 to 3 of evidence Nos. 42, the plaintiff asserts that each item of the management fee for the real estate of this case in arrears with the non-party corporation corporation, the former owner of which was the non-party corporation, before acquiring the real estate of this case, is as shown in the attached Form, since the non-party corporation, the non-party corporation, was not using the real estate of this case and the management fee for the section for exclusive use was not imposed. Thus, the defendant asserts that all of the items listed in the attached Form above are the management fee for the section for common use.

All management expenses imposed without using a building shall not be deemed management expenses for common areas, and shall be determined according to the nature of each item imposed. The cleaning expenses, repair and maintenance expenses, special repair expenses, elevator maintenance expenses, water tank cleaning expenses, common electricity fees, common water supply fees, etc. for the maintenance and management of common areas regardless of the maintenance and management of the section for exclusive use (in addition, imposing the management expenses according to the ratio of the exclusive use area), other general management expenses, fire insurance premiums, etc. shall be for the maintenance and management of both the section for exclusive use and common areas. However, without distinguishing the management expenses for common areas in this item, the management expenses for common areas shall be calculated according to the ratio of the area occupied by the section for exclusive use and common areas in this case to the sum of the sections for exclusive use and common areas in this case. However, according to each entry in evidence 43-1 through 17, it can be recognized that the sum of the sections for exclusive use and common areas in this case is 3,010 square meters, and the area of common areas is 1,348.1 square meters.

(A) Examining the management expenses of the item clearly found to be related to the section for common use among the management expenses in arrears, the sum of the cleaning expenses is KRW 38,732,401, KRW 5,578,812, KRW 9,058,236, KRW 5,945,351, KRW 454,815, KRW 454,815, joint electricity charges, KRW 34,647,605, and joint water supply charges of KRW 4,317,817, and KRW 98,735,037.

(B) If the management expenses of the items clearly related to both the section for exclusive use and the section for common use among the management expenses imposed, general management expenses are KRW 50,856,109, fire insurance premium, KRW 4,461,864, book keeping fees, KRW 587,068, and KRW 68,887,125, which are the sum of the management expenses, and KRW 30,850,446 (=68,87,887,125 x 1,3481/3,010, and less than KRW 1,000).

(c)If the arrears are calculated in accordance with the criteria and proportion set forth in (a) above 8,381,140 won and (b) above 6,479,298 won [8,381,140 x (98,735,037 + (30,850,446 + 98,735,037 + 30,850,446] / (98,735,037 + 68,87,125];

(D) Therefore, the Plaintiff is obligated to pay the Defendant the delinquent management expenses for the common area, which correspond to 136,064,781 (98,735,037 + 30,850,446 + 6,479,298).

(4) As to this, the plaintiff did not have the Supreme Court decision on whether to succeed to delinquent management expenses prior to the successful bid, and the lower court did not recognize that the plaintiff succeeded to delinquent management expenses for common areas of the real estate of this case, and there was no reason to believe that there was any lack of reasonable maintenance and management due to the delay in management expenses for the common areas of the real estate of this case. Therefore, the management expenses for common areas succeeded to the plaintiff, who is the special successor of the real estate of this case, shall not include any late payment charges. Accordingly, the management expenses for the succeeded common areas shall include not only the management expenses imposed on the special successor of the real estate, but also late payment charges incurred by the former owner due to the delay in management expenses for the common areas of this case. The successor was aware of his duty of succession, and that the late payment charges shall not be succeeded to only if it is difficult to properly maintain and manage the common areas due to delinquency. Therefore, the plaintiff's above assertion is without merit.

(5) In other words, the Plaintiff asserts that the total area of 449.7 square meters, such as toilets, corridorss, and elevator holes, which are the 8th floor of Yeongdeungpo Flag Building, was provided to the interests of the entire co-owners and not maintained and managed, and that the 8th floor was not maintained and managed due to power supply and fractional measures, and thus, the management expenses equivalent to the above area should be excluded.

However, the relationship between each sectional owner or each sectional owner's section for exclusive use and the section for exclusive use can diverse benefits enjoying each sectional owner. However, it is difficult for each sectional owner to closely reflect the strongness and attitude of such relationship in the management relationship. Rather, in order to preserve the whole building, increase the benefits of all sectional owners, prevent the complexity of legal relations, the other sectional owners cannot refuse to pay management fees, unless it is evident that certain section for common use should be provided particularly to the public use of only some sectional owners in structural and functional aspect. However, among the real estate owned by the Plaintiff, the rest toilets, corridors, and elevator holes of the 8th floor floor of Young Fraralar Building, which is the section for common use, is mainly used by the eightth floor users, but it is not limited to the use by other sectional owners or users of Young Fra building, and thus it is clear that only the owner or users of the real estate of this case should be provided for the public use of the real estate of this case. Therefore, the plaintiff's assertion above is without merit.

B. Determination as to the existence of management expense obligation after April 9, 2001

(1) In full view of the overall purport of the arguments in Gap evidence Nos. 5, 6, 9 (Post-proof Mail of Contents), Gap evidence Nos. 11 (Cooperations with Decision of General Meeting), and evidence Nos. 12 (Regular Minutes of General Meeting), the defendant may recognize the fact that the plaintiff obstructed the use of the real estate of this case by October 20, 201, for the reason that the plaintiff did not pay the delinquent management expenses of Sora Co., Ltd., the former owner after the successful bid of the real estate of this case, and that the plaintiff was unable to use and profit from the real estate of this case from April 9, 2001 to October 19, 201.

(2) As to this, the defendant asserts that the suspension and cutting of the eight-story elevator, the single-story measure is a measure for collecting delinquent management fees according to the management rules, and that the plaintiff was not able to use or profit from the real estate of this case due to the defendant's disturbance.

Article 21(5) and (6) of the Management Rules on the Fran Building shall apply to the buyer's property in arrears for not less than three months, such measures as electricity or fractional, and shall be collected in accordance with legal procedures after taking a provisional attachment procedure for the property of the buyer. Where the sectional ownership is changed by sale, auction, etc., the procedure of paragraph (5) shall apply to the previous sectional owner or user's default management fees, and where the total amount of delinquent management fees is not deposited in the whole one floor, the restriction on suspension of operation of elevators, electricity, water and gas supply and use in addition to the measure of paragraph (5) shall be imposed. However, as seen above, the matters concerning the succession of delinquent management fees exceed the limits of the Management Rules, which are related to the rights and obligations between the buyer and the other sectional owner, and thus, the maintenance and management of the aggregate buildings shall be provided for the benefit of the entire sectional owner, as well as the maintenance and management thereof shall not be explicitly recognized as necessary for the maintenance of the management fees for the common area and its claim for the maintenance of the total management fees shall not be granted to the sectional owner.

3. Determination as to the claim for damages among the main claim

A. Occurrence of damages liability

From April 9, 2001, the Defendant, a former owner, suspended the use of the eight-story elevator on the ground that the Plaintiff did not pay delinquent management expenses for the Plaintiff’s land of this case from April 9, 2001, and obstructed the Plaintiff’s use of and profit from the instant real estate from October 20, 201 by October 20, 201, such as making the Plaintiff impossible to use electricity and water for the eight-story floor. Therefore, the Defendant is liable to compensate the Plaintiff for damages arising therefrom.

B. As to this, the Defendant: (a) the 8th floor elevator was parked without the previous owner’s use; (b) the Defendant controlled a third party’s unauthorized access to the elevator to prevent the occurrence of various accidents, such as fire and damage to water, etc.; (c) the new owner’s use of electric power systems up to the 8th floor; (d) the former owner’s use of electric power systems; (e) the former owner’s use of electric power systems up to the 8th floor; (e) the 8th floor has been obstructed by the former owner’s use of electric power systems; and (e) the 8th floor has no separate water supply facilities other than toilets; and (e) the supply of electric power without the use thereof is not interfered with the Plaintiff’s exercise of the Plaintiff’s ownership or business by negligence; (e) however, the Defendant’s use of electric power systems as well as the testimony by this court cannot be trusted, and there is no evidence to acknowledge it otherwise.

In addition, the defendant asserts that the suspension and suspension of the eightth floor elevator and the suspension of electricity, and the suspension of fractional measures are legitimate measures for collecting delinquent management fees pursuant to the management rules, but Article 18 of the Aggregate Buildings Act particularly recognizes that the special successor can claim the delinquent management fees for the common area regardless of whether the special successor wishes to succeed thereto, and even if the special successor can claim the management fees for the succeeded management fees for the common area, the management rules which set forth measures such as the suspension of the fraction and the suspension of the elevator or the restriction on the use of the common area as measures to collect the succeeded management fees for the special successor, which goes beyond the limits of the establishment of the management rules, which are autonomous rules, as they go beyond the limits of the establishment of the management rules, as they are related to the rights and obligations between the persons other than the sectional

C. Limitation on liability for damages

The Defendant’s interference with the Plaintiff’s use of and profit from the instant real estate was the cause for the succession of the Plaintiff, who is the special successor, to the delinquent management fees for the Plaintiff, the former owner, and as seen above, the Plaintiff succeeds to the management fees for the common areas among the delinquent management fees, and thus, in light of the ideology of the Damage Compensation Act, the ratio of the Defendant’s liability should be limited to 56% [10% - 44% (the area of the common areas 1,348.81/81/the total area of the common areas, 3,010.51/the small number of stores) obtained from the total area of the instant real estate.

D. Scope of damages

Unless there are special circumstances, damages incurred by failure to use or make profits from the real estate of this case shall be the amount equivalent to the rent for the real estate of this case. According to the result of appraisal by the court of first instance at the same time as appraiser for the real estate of this case, the amount equivalent to the rent for a case where no deposit exists from April 9, 2001 to October 20, 201 can be recognized facts that cause 86,356,000. Considering the defendant's liability ratio of 56%, the amount of damages that the defendant is liable to compensate for to the plaintiff shall be 48,359,360 won (86,356,000 won x 0.56).

4. Judgment on the grounds of offset

Since the defendant defense that he offsets the above claim against the plaintiff's management expenses claim, the above claim is in offset because all of the payment period of October 201, 2001, which is the due date for the payment of the damage claim, has arrived. Thus, the plaintiff's damage claim 48,359,360 won is offset against the management expenses claim amounting to 136,064,781 won, and the management expenses claim amounting to 87,705,421 won (136,064,781 - 48,359,360) has been extinguished.

5. Conclusion

If so, the plaintiff is obligated to pay to the defendant 87,705,421 won and the damages for delay at the rate of 5% per annum from November 26, 2001 to December 12, 2003, which is the sentencing date of this case, and 20% per annum from the next day to the full payment date under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, and the plaintiff and the defendant shall not have any obligation to pay the plaintiff's delinquent expenses to the defendant with respect to the real estate of this case in excess of the above amount.

Therefore, as long as the defendant contests the existence of the delinquent management expenses and the plaintiff's obligation for management expenses for the real estate of this case, the plaintiff's claim for the confirmation of non-existence of management expenses and the plaintiff's counterclaim among the plaintiff's claim for the main lawsuit of this case are justified within the scope of the above recognition. The plaintiff's claim for the confirmation of non-existence of management expenses and the plaintiff's remaining counterclaim are dismissed as it has no grounds. Accordingly, since the defendant extended the claim for counter-performance to the court of first instance, it is so decided as per Disposition by the assent of all participating Justices.

Judges Kim Hwang-sik (Presiding Judge) Lee Jae-sik