2015Nu1125 Revocation of a corrective order

Korea Land Trust Corporation

Main Market

Chuncheon District Court Decision 2014Guhap4922 Decided October 23, 2015

May 16, 2016

June 13, 2016

1. Revocation of a judgment of the first instance;

2. On July 9, 2014, the Defendant’s corrective order against the Plaintiff to take over the management of multi-family housing should be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

The reasons for this part are the same as the reasons for the judgment of the first instance except for the following modifications. Thus, this part is cited by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

Modification of the Modification

m. 1. Amendment to the part of paragraph (e) of this Article

On July 9, 2014, the Defendant issued a corrective order to take over the management affairs of multi-family housing (hereinafter referred to as “instant disposition”) to the Plaintiff on the ground that the Plaintiff, as the business proprietor of the instant apartment, is obligated to transfer the instant apartment management to the council of occupants’ representatives pursuant to Article 54 of the Enforcement Decree of the Housing Act. The Plaintiff was served on July 15, 2014.

2. Relevant statutes;

It is as shown in the attached Form.

3. The parties' assertion

A. Summary of the plaintiff's assertion

Although the Plaintiff had newly constructed the instant apartment after obtaining approval of the business plan regarding the new construction of the apartment, the Plaintiff was newly constructed for the purpose of leasing the instant apartment, and thereafter, the Plaintiff operated the instant Amm apartment as a rental apartment. Therefore, as a business entity under the Housing Act (a person who executes the relevant business after obtaining approval of the housing construction project plan) and was managing the instant apartment as a rental business entity under the Housing Act, rather than managing the instant apartment, and as a management entity, as a comprehensive transfer of the status of the said rental business entity to the non-party company, there is no obligation to transfer the management duties to the council of occupants’ representatives of the instant apartment.

B. Summary of the defendant's assertion

1) First of all, the non-party company did not report to the effect that “the apartment of this case was included in the leased property of the non-party company” in relation to the registered matters of the rental business operator. Accordingly, the court below cannot set up against the Defendant regarding the change in the status

2) Even if the non-party company lawfully transferred the status of the rental business operator to the non-party company for domestic affairs, the plaintiff is obligated to transfer the business to the council of occupants' representatives of the apartment of this case based on the status of the business operator pursuant to Article 43 of the Housing Act, as well as the status of the business operator as the business operator.

3) In addition, the transfer to the non-party company is limited to 426 households, and 79 households already converted to sale before the transfer of the status of the rental business operator, the management entity of the above 79 households still becomes the plaintiff. Therefore, at least 79 households must transfer the management affairs to the council of occupants' representatives of the apartment in this case.

4. Determination on the legitimacy of the instant disposition

A. The meaning of a report on alteration of registered matters

First of all, the fact that the non-party company did not report the change of the status of a rental business operator of the instant Ampha in relation to any impact on the change of the status of a rental business operator of the instant Ampha, there is no legal basis to deem that the change of the status of a rental business operator could not be asserted against the administrative agency, including the defendant, unless the change of the above registered matters is reported. Rather, it would result in confusion in legal relations by allowing the change of the status of a rental business operator to be affected by the change of the status of a rental business operator depending on the change of the transferee, or by separating the effectiveness of private law and the effectiveness of public law

(b) No managing body of a rental apartment and no person who takes over the management affairs;

Next, in full view of the following circumstances recognized in light of the language and structure of the relevant laws and regulations as to the managing body of the rental apartment, it cannot be deemed that the Plaintiff has a duty to take over the government affairs as a separate project proprietor. Therefore, the first Defendant’s assertion on a different premise is without merit without further review.

1) The Rental Housing Act, which was in force on December 18, 2002 when the apartment of this case was completed, was enacted around December 18, 2002, providing that the rental business operator shall manage the apartment of this case itself or entrust the management of the apartment of this case, and such a position is also the same as the Special Act on Private Rental Housing of this case.

2) In addition, the Housing Act also has clearly defined the "project proprietor" and "rental business operator" in regulating the management entity of multi-family housing even after the amendment by Act No. 6916 of May 29, 2003.

3) Furthermore, since the amendment of the Housing Act in its entirety, until now, the Housing Act defines the business entity as a management entity, and limits the time range by stipulating the business entity before transferring the management affairs pursuant to Article 43(6). Article 43 of the Housing Act provides that "the business entity who constructed the apartment house" shall hand over the management affairs to the management entity determined by the tenant's self-government will. In addition, if the management entity is not determined by the given time limit, the business entity's body will directly select the housing management operator and hand over the management affairs to the relevant housing management entity.

4) Ultimately, this seems to be premised on the premise that the management affairs as a project proprietor are temporary, temporary, and exceptional affairs. In other words, (such as construction of a new apartment for the purpose of sale), if there is no person responsible to manage the apartment house or is not determined, the original purpose is to temporarily or temporarily entrust the management affairs of the apartment house to a project proprietor in accordance with the purpose of the law before the management entity is formed or determined, and there is a "other management entity (leased business entity, housing management business entity, etc.) with the management affairs of the apartment house as its original business objective," but it is not a provision to impose another management affairs again on the project proprietor. Rather, if another management entity recognizes the "the status as the above exceptional management entity" on the project proprietor even though there is another management entity, there is a conflict between the management entity and the project proprietor, and legal confusion is only caused.

5) Therefore, in cases where a rental business entity newly constructs a multi-family housing, it is sufficient to view that a separate management entity is in charge of management of multi-family housing from the beginning, based on the status of a rental business entity, and there is no need to recognize that a rental business entity should be in charge of management separately from the status of a rental business entity. This is the same as in cases where a rental business entity newly constructs a multi-family housing and transfers the status of a rental business entity to a third party. In other words, it is reasonable to view that only a third party to whom the status of a rental business entity was acquired is the management entity, and the first rental business entity is exempted from management at the same time when it takes over management affairs to the said transferee ( even if it is a business entity).

6) In addition, when considering the fact that the obligation to take over the management affairs is premised on the assumption of the obligation to take over the management affairs, the obligation to take over the management affairs is recognized as based on the status of the rental business entity, and the obligation to take over the management affairs is not recognized as a separate business entity. The meaning of "the same shall apply where the management entity is changed" as provided in the latter part of the main sentence of Article 43(6) of the Housing Act is interpreted to mean that the former management entity must take over the management affairs to the new management entity (as the business entity takes over the management affairs to the first management entity), and it does not mean that the former management entity must take over the management affairs to the new management entity.

7) On the contrary, if it is interpreted that the status as a rental business entity and the status as a business entity exists separately and that the business entity bears the obligation to take over separate management affairs at the time of conversion of ownership in lots regardless of whether the status as a rental business entity is transferred, this would also be contrary to general common sense. In light of the case where the status as a rental business entity after the construction of a housing rental apartment is transferred before and after the transfer of the status as a rental business entity, the first rental business entity does not participate in the management affairs until the transfer of the status as a rental business entity and the transfer of the status as a rental business entity is converted for sale in lots because there is no interest in the common housing after the transfer of the status as a rental business entity, and thus, it is difficult to understand by forcing such business entity to transfer the status of a rental business entity.

8) In fact, the proviso of Article 66(3) of the Enforcement Decree of the Housing Act (amended by Presidential Decree No. 22254, Jul. 6, 2010) is premised on the fact that “a rental business operator takes over management affairs to a new management entity after approval for conversion of ownership is also subject to the transfer of ownership.”

9) Therefore, the managing body of the instant apartment is not the Plaintiff, as a rental business entity, as the Plaintiff was the Plaintiff as the managing body of the instant apartment. Since the Plaintiff transferred the status as a rental business entity to the non-party company to the non-party company, it is sufficient for the Plaintiff to transfer the management affairs to the non-party company pursuant to the latter part of the main sentence of Article 43(6) of the Housing Act (the same shall apply to the case where the managing body is changed). It is sufficient for the Plaintiff to transfer the management affairs to the non-party company, and otherwise, there is no obligation to transfer the management affairs to the above representative body until

10) In addition, taking over the management affairs to the non-party company is subject to the transfer of the status of the rental business operator, so there is no need to follow the procedure prescribed in Article 54 of the former Enforcement Decree of the Housing Act pursuant to Article 46(2) of the same Decree.

11) Therefore, the Plaintiff’s transfer of management work to the Nonparty Company is lawful and valid. Accordingly, the Plaintiff’s management work is exempted, and the council of occupants’ representatives of the instant apartment that was thereafter constituted can seek a transfer of management work against the Nonparty Company, and cannot seek a transfer of management work against the Plaintiff.

(c) Managing body of 79 households;

Finally, in the case of 79 households that were converted for sale in lots before the transfer of the status as a rental business operator and did not acquire the status as a rental business operator, considering the following circumstances acknowledged in light of the health care room, the statement of evidence Nos. 7 through 10, the purport of the entire pleadings, the language and structure of the related laws and regulations, etc., as well as the above 79 households' management affairs are effective and transferred to the non-party company, and the plaintiff cannot be deemed to bear the obligation to take over management affairs for the above 79 households. Thus, the defendant's assertion on the different premise is without merit.

1) The Rental Housing Act, which was in force at the time of conversion of apartment housing in this case, only stipulates that "The Housing Act, which was in force at the time of conversion of apartment housing in this case, shall follow the official method of housing other than rental housing," and the Housing Act, which was in force at the time, did not have any specific provision on this.

2) Even after the conversion of the sale in lots, the Plaintiff performed management work for the said 79 households, as in the previous 79 households, and the said 79 households did not raise any objection to the Plaintiff’s performance of management.

3) Since then, the Plaintiff transferred the above 79 household management business to the non-party company as well as the non-party company’s non-party company’s management business. This seems to have comprehensively transferred the Plaintiff’s business including the management business of the apartment of this case.

4) However, as seen earlier, the managing body of the rental apartment is a rental business operator, the managing body of the rental apartment is also a rental business operator who shall take over the management affairs to the above representative council when the council of occupants' representatives is formed due to the conversion before sale, and is also a rental business operator who manages the apartment of this case, whether the above council of occupants' representatives is formed after sale in lots. It is also possible to change the managing body

5) Thus, it is still valid for the Plaintiff to transfer the above 79 households (before the formation of the council of occupants' representatives) to the non-party company by transferring the status of the rental business operator to the non-party company. Since the above management business and the obligation to take over it thereafter are in charge of the non-party company, the council of occupants' representatives of the apartment of this case cannot require the above 79 households to take over the management affairs against the plaintiff.

5. Conclusion

Thus, the disposition of this case should be revoked illegally, and since the judgment of the court of first instance is unfair with different conclusions, it is decided as per the disposition to cancel this and accept the plaintiff's claim.

Kim Jong-soo (Presiding Judge)

Park Byung-chul

Judges

1) Article 3 of the Housing Construction Promotion Act, which was in force at the time of approval of the business plan of the apartment of this case, provides for the management entity and separate designation of

Although the Rental Housing Act is not prescribed as such, in the case of rental apartments, the Rental Housing Act is applied in preference to the Housing Construction Promotion Act, so conversion for sale in lots.

There is no change in the fact that the management entity of the apartment of the previous case is the Plaintiff or the housing management operator entrusted with the management thereof.

2) The purport of this case’s apartment project approval or completion is also the same as Article 38 of the Housing Construction Promotion Act, which was in force.

3) In addition to the provisions, language and text are not changed.

Site of separate sheet

1. Rental Housing-related provisions;

old Rental Housing Act (amended by Act No. 6916 of May 29, 2003)

Article 17 (Management of Rental Housing)

(1) A rental business operator shall make the Housing Construction Promotion Act for rental houses meeting the size prescribed by Presidential Decree.

The management of a housing management operator under Article 39 shall be entrusted to him, or self-management thereof.

Provided, That in cases of the State, local governments, Korea National Housing Corporation or local public corporations, the methods prescribed by Presidential Decree.

such management may be conducted in accordance with this Act.

former Enforcement Decree of the Rental Housing Act (wholly amended by Presidential Decree No. 20849, Jun. 20, 2008)

Article 15 (Management of Rental Housing)

(1) "Scale prescribed by Presidential Decree" in the main sentence of Article 17 (1) of the Act means the following sizes by complex of rental housing:

The term "rental housing" means rental housing falling under any of the following subparagraphs:

1. Collective housing of 300 or more households; and

2. Collective housing fitted with elevators;

3. An apartment house with a central heating system.

former Enforcement Decree of the Rental Housing Act (amended by Act No. 12117, Dec. 24, 2013)

Article 28 (Management of Rental Housing)

(6) In applying paragraph (1), a non-rental house and a rental house are in the same building or the same week.

Where a housing complex is organized, the method of managing the housing other than the rental housing shall be followed.

2. Provisions related to the Housing Act;

old Housing Act 3)

The definitions of terms used in this Act shall be as follows:

14. The term "managing body" means any of the following persons who manage the collective housing:

(a) The head of a management office of collective housing who is the representative of an autonomous management organization;

(b) Project undertakers before handing over the management duties under Article 43 (6);

(c) Housing management operators under Article 53 (1);

(d) Rental business operators (rental business operators under subparagraph 7 of Article 2 of the Special Act on Private Rental Housing or public housing;

A public housing project operator under Article 4 (1) of the Special Act on Housing; hereinafter the same shall apply)

former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003)

Article 3 (Definitions)

The definitions of terms used in this Act shall be as follows:

4. The term "managing body" means an autonomous management body or a house which is composed of occupants to manage the collective housing;

Management agencies and project undertakers means management agencies and project undertakers.

Article 38 (Management of Collective Housing)

(1) The council of occupants' representatives and the management entity of occupants' representatives of owners of multi-family housing, incidental facilities and welfare facilities.

It shall be managed under the conditions as prescribed by the Ordinance.

(4) A multi-family housing prescribed by Presidential Decree (including incidental facilities and welfare facilities, but sold to the general public among welfare facilities.

The facilities shall be excluded; hereinafter the same shall apply) occupants shall autonomously manage (hereinafter referred to as "self-management");

In addition to cases, the management shall be made by a housing management operator under Article 39.

(6) A project operator who has constructed multi-family housing falling under paragraph (4) shall, when a majority of prospective occupants have completed occupancy.

shall notify the occupants of the fact and request the management of the relevant collective housing pursuant to paragraph (4).

of this section.

(1) Upon receipt of a request under paragraph (6), an occupant shall make a request, within one month from the date of receipt of such request.

The voting meeting shall be organized, and management methods of the collective housing concerned shall be determined (the election management operator management methods by the housing management operator);

Where a housing management operator is selected, he/she shall be included in the selection of the housing management operator, and shall notify the project operator thereof, and jurisdiction.

The head of a Si, etc. shall report.

(8) When the council of occupants' representatives intends to autonomously manage the collective housing falling under paragraph (4), it shall paragraph (6).

Self-management with the technical manpower and equipment within six months from the date of request as prescribed by the Presidential Decree.

the agency shall be organized.

(9) The project undertaker shall not make a notification under paragraph (7) by the council of occupants' representatives, or autonomous under paragraph (8).

When no management organization is organized, a housing management operator shall be selected. In such cases, a project operator shall be admitted.

such fact shall be notified to the owner.

(1) A project proprietor shall be organized by the autonomous management organization under paragraph (8), or a house under paragraph (9).

Where a Ri business operator is selected, the management affairs of the collective housing shall be transferred to the managing body concerned.

Only, the management period of the managing body under paragraph (9) shall be determined by the Presidential Decree.

former Housing Act (amended by Act No. 12115, Dec. 24, 2013)

Article 43 (Managing Body, etc.)

(1) Multi-family housing prescribed by Presidential Decree (excluding housing after obtaining a building permit under Article 11 of the Building Act).

Cases where a house is constructed as the same building and appurtenant facilities and welfare facilities shall be included, but among welfare facilities;

A project operator who constructs facilities to be sold in lots to competitors shall be excluded; hereinafter the same shall apply) a majority of prospective occupants.

A person shall directly manage the multi-family housing until he/she occupies it, and a majority of prospective occupants have occupied it;

If the occupant is notified of the fact and requests the management of the multi-family housing pursuant to paragraph (2), the occupant shall be appointed.

section 3.

(2) Occupants shall autonomously manage multi-family housing falling under paragraph (1) pursuant to paragraph (4), or houses under Article 53.

The management business operator shall entrust the management thereof to another management business operator.

(3) Upon receipt of a request under paragraph (1), an occupant shall, within three months from the date on which the request is made.

The representative meeting shall be organized, and management methods of the multi-family housing shall be decided (management by entrusting the housing management operator to management

Where a method is selected, the selection of the housing management operator shall be included) and notify the project operator thereof.

and shall report to the head of the competent Si/Gun/Gu.

(4) Where the council of occupants' representatives intends to autonomously manage multi-family housing, it shall make a request under paragraph (1).

The head of the management office of multi-family housing shall be appointed as the representative of the autonomous management organization within six months; Presidential Decree

an autonomous management organization that has technical human resources and equipment prescribed by this Act shall be organized: Provided, That Article 53 shall apply.

Where the method of management is changed to autonomous management while entrusting a housing management operator to a senior housing management operator, such entrusted management;

An autonomous management organization shall be organized by the last day of such organization.

(5) No business entity shall notify under paragraph (3) by the council of occupants' representatives, or the council of occupants' representatives.

Where no autonomous management organization has been organized, a housing management operator shall be selected. In such cases, a housing management operator shall be selected.

A project undertaker shall notify occupants of such fact.

(6) A project undertaker who falls under any of the following subparagraphs shall not exceed a period prescribed by Presidential Decree:

the management of the collective housing shall be transferred to the management entity, and the management entity shall be changed.

The same shall also apply to the Do: Provided, That the management period of the management entity under paragraph (5) shall be prescribed by Presidential Decree.

1. Where a council of occupants' representatives receives a notice on the selection of a housing management operator under paragraph (3);

2. Where an autonomous management organization under paragraph (4) is organized;

3. Where a housing management operator is selected under paragraph (5).

Enforcement Decree of the Housing Act (amended by Presidential Decree No. 22254, Jul. 6, 2010)

Article 66 (Accumulation, etc. of Long-Term Repair Reserves)

(3) The long-term repair appropriations shall be the date of inspection for use of the relevant multi-family housing.

Where approval is obtained, from the month when one year has elapsed from the date of approval for provisional use (referring to the date of approval for provisional use)

shall be accumulated monthly: Provided, That in cases of constructed rental housing approved for conversion for sale in lots, a lessor under Article 54;

A business operator shall accumulate every month from the month in which he/she has transferred the management affairs to the management entity.

Enforcement Decree of the former Housing Act (amended by Presidential Decree No. 23928, Jul. 4, 2012)

Article 46 (Scope of Application of Housing Management)

(2) Notwithstanding paragraph (1), only the following shall apply to multi-family housing constructed for the purpose of lease:

section 3.

1. Matters concerning standards for permission for acts, etc. under Article 47;

2. Matters concerning the scope of multi-family housing subject to compulsory management by housing management operators, etc. under Article 48;

3. Matters concerning joint management and divided management under Article 52 (2);

4. Matters concerning the duties, etc. of the managing body under Article 55;

5. Matters concerning the selection of a business operator for the execution of management expenses under subparagraph 1 of Article 55-4;

6. Matters concerning the consent of the managing body under Article 57 (4);

7. Matters concerning the disclosure of management expenses, etc. under Article 58 (8);

8. Provisions of Articles 59, 59-2, 60, 60-2, 61 and 62-2 through 62-10;

Matters concerning defect repair, defect diagnosis, defect examination, dispute mediation committee, etc. under this Act;

9. Matters concerning the safety control of installations under Article 64;

10. Matters concerning the safety inspection of collective housing under Article 65;

11. Placement of the head of a management office, housing managers, and housing managers under Articles 72, 72-2, 72-3, and 73;

Matters concerning assistant housing managers, etc.

12. Matters concerning the supervision over the management of collective housing under Article 82.

Article 54 (Acceptance and Transfer of Management Affairs)

(1) A project undertaker shall make an autonomous management organization or autonomous management organization pursuant to the main sentence of Article 43 (6) of the Act.

When transferring to a housing management operator, a written acceptance and transfer shall be prepared, and the following documents shall be transferred:

shall be taken over and taken over in the presence of the representative of the council of occupants' representatives. In such cases, the transferee and the transferor shall take over

Each letter shall be signed and sealed respectively.

1. Design documents, details of equipment, long-term repair plan, and safety management plan;

2. Current status of imposition and collection of management expenses and user fees, and accounting documents related thereto;

3. Current status of accumulation of the long-term repair appropriations under Article 51 of the Act (hereinafter referred to as the "long-term repair appropriations");

4. Details of management expenses deposited; and

5. Management rules, and other matters necessary for the management duties. Finally.