2018Da273981 Management Expenses

Dongdaemun Manman Apartment Apartment Self-Governing Association

Law Firm KONNON et al.

Attorney Park Jin-sik

Defendant 1 and one other

Attorney Park Sung-sung, Counsel for the plaintiff-appellant

Seoul Central District Court Decision 2017Na91327 Decided September 12, 2018

January 14, 2021

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined.

1. On March 10, 2017, at the general meeting of the Plaintiff, the managing body of the Act on Ownership and Management of Condominium Buildings (hereinafter referred to as the “Aggregate Buildings Act”), the lower court determined that the resolution of selecting the Nonparty as the representative of the Plaintiff (hereinafter referred to as the “prior resolution”) was invalid because it did not satisfy the quorum, and that the resolution of ratification of the prior resolution at the general meeting of March 9, 2018 (hereinafter referred to as the “prior resolution”) was made on the grounds that it cannot be deemed that the Nonparty elected as the representative by the prior resolution was made by a legitimate convening authority.

2. However, we cannot agree with the judgment of the court below for the following reasons.

A. The Commercial Act provides that the procedures for convening a general meeting of shareholders or the method of resolution against a resolution of a general meeting of shareholders is against the statutes or the articles of incorporation or against the articles of incorporation "if the contents of the resolution violate the Acts and subordinate statutes," and provides that "if the contents of the resolution of a general meeting of shareholders are in violation of the Acts and subordinate statutes," it shall be deemed that there is a serious defect in the methods of convening a general meeting of shareholders or the method of resolution," and provides that the resolution may be contested as a lawsuit for revoking the resolution (Article 376 of the Commercial Act), and the lawsuit for confirming invalidity and non-existence of the resolution (Article 380 of the Commercial Act) shall be instituted within 16 months from the date on which the resolution of the general meeting of shareholders is revoked or the contents of the resolution are revoked within 16 months from the date on which the resolution of the general meeting of shareholders is revoked or entered into force within 2015 months from the date on which the resolution of the general meeting of shareholders is revoked or its contents are revoked."

If the sectional ownership relation to a building under the Aggregate Buildings Act is established, a management body is established with the aim of carrying out the business of managing the building and its site and its accessory facilities as members of all sectional owners (Article 23(1)); the management body shall exercise or perform its duties with the care of a good manager necessary for common interests concerning the management and use of the building (Article 23-2); the management body’s affairs shall be performed with the care of a good manager (Article 23-2); and the management body’s affairs shall be performed by the resolution of the management body meeting except for the matters delegated to the manager as the Aggregate Buildings Act or its regulations (Article 31); and the regulations and the resolution of the management body meeting shall also be effective against the special successor of the sectional owner; and the possessor shall have the same obligation as the sectional owner bears with respect to the use of the building, its site and its accessory facilities (Article 42). In consideration of the fact that the resolution of the management body meeting may have a considerable influence on the legal relations among the sectional owners, the management body meeting shall provide detailed provisions on the timing, method

In full view of these circumstances, adopting a lawsuit seeking revocation of a resolution by the Aggregate Building Act does not distinguish the defect of the management body meeting's resolution procedure, method of resolution, and whether the contents of resolution are the defect. If the defect is minor, the validity of the resolution by the management body meeting can be settled as soon as possible through the lawsuit seeking revocation, and thus, the stability in legal relations among sectional owners is ensured. If the defect is a serious defect in the process or content of the resolution that is not attributable to the invalidation of the resolution, it would be likely that the previous lawsuit seeking nullification of the resolution through a lawsuit seeking invalidation confirmation under the civil law without the limit of the filing period, or that it would be possible to claim invalidation as a preliminary issue in other legal relations.

Therefore, in light of the purpose and purpose of the Aggregate Buildings Act to reasonably regulate legal relations among sectional owners, i.e., the procedure or method of convening an assembly, i.e., where the procedure or method of resolution violates Acts and subordinate statutes or regulations, or where the contents of the resolution violate the Acts and subordinate statutes or regulations, i.e., the "case where the contents of the resolution violates the Acts and subordinate statutes or regulations" means a defect to the extent that such defect does not have any defect in the degree that it is not attributable to the invalidity of the resolution, and as such, the resolution that can be cancelled due to such reason for revocation is valid unless it is revoked by the lawsuit for revocation of resolution which is instituted within the exclusion period stipulated in Article 42-2 of the Aggregate Buildings Act. Meanwhile, as the issue of whether the exclusion period has lapsed is a matter of ex officio examination by the court, the court shall investigate and determine it ex officio without the party'

Meanwhile, in a case where the management body meeting of the management body established under Article 23 of the Aggregate Buildings Act accepts or re-satisfys the previous resolution at the management body meeting held after the resolution for appointment of executive officers was passed, barring special circumstances, such as where the resolution for appointment of executive officers at the management body meeting held again is null and void due to defects in the initial resolution for the management body meeting held, barring special circumstances, such as where the resolution for appointment of executive officers at the management body meeting held again is deemed null and void, the reason called a management body meeting convened by an unentitled person after the resolution for new management body meeting was adopted by the management body meeting at the initial null and void, and thus, the reason called a management body meeting held by an unentitled person cannot be deemed as an independent ground for invalidation in principle. If such a resolution is deemed null and void, it would result in confusion in legal relations and undermine legal stability (see, e.g., Supreme Court Decision 2011Da6920, Jan. 27, 2012).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) According to the Plaintiff’s bylaws, the president, a representative, shall attend a majority of sectional owners and elect them with the consent of a majority. At the ordinary meeting, only 27 members who fall short of the majority among 63 sectional owners, attended a meeting and passed a prior resolution to select the Nonparty as the representative of the Plaintiff.

2) As above, the Nonparty, who was elected by the preceding resolution, once again convened and holds a general meeting of the Plaintiff, and 28 of the participants among 63 sectional owners present with the consent of 42 of the members present at the general meeting of the Plaintiff. Examining these facts in light of the legal principles as seen earlier, it is reasonable to deem the preceding resolution to be null and void due to the defect in the method of the resolution, but there is considerable room to deem that the defect in the method of the preceding resolution, which was adopted by 27 of the 63 sectional owners and the Nonparty as the representative of the non-party. Furthermore, even if the preceding resolution, which was adopted by the non-party representative, is null and void due to the defect in the resolution, the subsequent resolution cannot be deemed null and void on the sole ground that it was adopted at the general meeting convened by the non-party at the general meeting convened by the non-party, insofar as the subsequent resolution was adopted to ratification the preceding resolution.

The lower court determined that the validity of the preceding resolution is null and void without examining and determining whether Article 42-2 of the Aggregate Buildings Act applies to the preceding resolution, whether the method of resolution is a serious defect, or whether it is merely a defect to the extent that it falls short of a serious defect. In addition, the lower court determined that the latter resolution is null and void only on the ground that it is not a resolution by the general meeting held by a legitimate convening authority. In so determining, the lower court erred by misapprehending the legal doctrine on the defect and effect of the management body meeting’s resolution, lawsuit for revocation of resolution, etc., and failing to exhaust all necessary deliberations, which affected

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Supreme Court Decision 201

Justices Kim Jae-in

Justices Min Il-young in charge

Justices Lee Jae-hwan