[1] Whether a decision of the court below or an order may be reversed on the ground of a simple violation of law in a special appeal case disputing the requirements for granting the succeeding execution clause (negative)

[2] In case where the sectional ownership of an aggregate building is successively transferred, the form in which each special successor acquires the obligations of the former sectional owner (=the overlapping obligation assumption)

[3] Whether the "debtor's successor" under Article 31 (1) of the Civil Execution Act concerning the grant of succeeded execution clause includes "a person bearing an overlapping obligation" (negative)

[1] In a special appeal case that contests the requirements for granting the succeeding execution clause, the Supreme Court shall examine only whether there is a special appeal, including a violation of the Constitution that affected the judgment or order of the court below, and the judgment of the court below cannot be reversed solely on the ground that there is a mere violation of the law.

[2] Article 18 of the Act on the Ownership and Management of Aggregate Buildings provides that "The special successor under the above Act shall be entitled to exercise against the special successor the claim that the co-owner holds against the other co-owner with respect to the common area." Thus, the special successor under the above Act shall be entitled to assume the obligation to bear the expenses incurred in the maintenance and management of the common area of the aggregate building in accordance with the management agreement. In light of the legal principles of the assumption of the obligation that the legislative intent of the above Act and the assumption of the obligation are overlapping as to the interpretation of the intent of the parties indicated in the contract to assume the obligation, and it is reasonable to deem that the special successor has acquired the former sectional owner's obligation overlappingly if the former sectional owner is assigned in succession.

[3] Article 31(1) of the Civil Execution Act provides, “The execution clause may be granted for the benefit of a creditor indicated in the judgment or for the execution against a debtor's successor indicated in the judgment.” Thus, the so-called assumption of obligation, which succeeds to the status of a debtor as a party by extinguishing the debtor's obligation, may be deemed to constitute a successor as provided in the above provision, but it is merely a passive interpretation that the obligation of the party to the counter-performance of obligation continues to exist and bears a separate obligation.

[1] Article 449(1) of the Civil Procedure Act / [2] Article 18 of the Act on Ownership and Management of Condominium Buildings, Article 454 of the Civil Act / [3] Article 31(1) of the Civil Execution Act, Article 454 of the Civil Act

[2] Supreme Court Decision 2002Da36228 decided Sep. 24, 2002 (Gong2002Ha, 2538) Supreme Court Decision 2006Da50420 decided Dec. 11, 2008 (Gong2009Sang, 6)

Special Appellants

Applicant

Busan District Court Order 2009Kaga2407 dated August 27, 2009

The special appeal is dismissed.

The grounds of special appeal are examined.

Article 449(1) of the Civil Procedure Act provides, “A special appeal may be made to the Supreme Court only on the ground that there exists a violation of the Constitution that affected the trial, or that there is an unreasonable judgment on whether the order, rule, or disposition, which is the premise of the trial, has been violated by the Constitution or that the decision has been rendered is unreasonable.” Thus, in the above trial procedure, the party against whom the right to a fair trial as provided in Article 27 of the Constitution has been infringed may file a special appeal, but the mere assertion that there was a violation of the Act that affected the trial does not constitute a legitimate special appeal (see Supreme Court Order 2007Da40, Oct. 23, 2008). In the case of a special appeal disputing the requirements for granting succession of the execution clause, the Supreme Court shall examine only whether there is a special appeal, including the violation of the Constitution that affected the judgment or the order, and the judgment of the court below cannot reverse the judgment of the court below on the ground that there is a mere violation of the law.

Meanwhile, Article 18 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Aggregate Buildings Act") provides that "the special successor under the Act on the Ownership and Management of Aggregate Buildings shall be entitled to exercise against the special successor the claim that the co-owner holds against the other co-owner about the common area." Thus, the special successor under the Aggregate Buildings Act has the status of the assignee in that the special successor succeeds to the obligation to bear the expenses incurred in the maintenance and management of the common area of the aggregate building pursuant to the management rules. In light of the legal principles of the assumption of the obligation that the above legislative intent and the assumption of the obligation are connected with the interpretation of the parties under the Aggregate Buildings Act, and it is a matter of interpretation of the contract on the assumption of the obligation, and if it is unclear whether the former co-owner is exempted from the obligation, or if the overlapping land is not known, it shall be deemed that the former co-owner takes over the former co-owner's obligation overlappingly (see Supreme Court Decision 2006Da50420, Dec. 11, 2008).

According to the reasoning of the order of the court below, the special appellant filed a lawsuit against the non-party 1 who owns the store of this case against Busan District Court 2008Kadan71618, which sought payment of 22,374,290 won of the management expenses for common areas among the management expenses in arrears from November 1, 2002 to March 1, 2008, and became final and conclusive by winning a judgment. The non-party 2 purchased the store of this case from the non-party 1 and completed the registration of transfer of ownership on January 15, 2009. The applicant purchased it again from the non-party 2 and completed the registration of transfer of ownership on January 28, 2009. The special appellant applied for the grant of the execution clause to the non-party 1's successor, and the non-party 1's senior clerk of Busan District Court 2009 applied for the grant of the execution clause to the non-party 1's successor in accordance with the order of the judicial assistant.

Therefore, the special appellant is not allowed to apply for the grant of the inheritance execution clause against the applicant based on the above final judgment, and the court below's decision that the applicant cannot be viewed as the successor to the obligation under the above judgment on the ground that the obligation itself, which is not excessive to the transferee of the store of this case, is not specified and taken over, is not appropriate, but the decision to cancel the succession execution clause is just, and the conclusion to cancel the succession execution clause is not justified, and there is no special ground for appeal under Article 449 (1) of the Civil Procedure Act

Therefore, the special appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)