[1] Whether the superstore manager has the right to impose and collect management expenses from the merchants operating stores by leasing a store to the sectional owners of a superstore or to them (affirmative)

[2] The case holding that in a case where Gap corporation, which was performing the business of opening a market of a commercial building which is an aggregate building upon meeting the qualification under Article 12 (1) 3 of the former Wholesale and Retail Business Promotion Act and Article 8 (1) 1 of the former Enforcement Rule of the former Enforcement Rule of the Wholesale and Retail Business Promotion Act, imposed management fees on a person who acquired the ownership of a commercial building within six months after the enforcement date, even though it failed to meet the requirement that he shall meet the latter part of Article 13 (2) 3 of the former Distribution Industry Development Act within six months from the enforcement date under Article 3 (3) of the former Addenda of the Distribution Industry Development Act (amended by Act No. 540, Apr. 10, 1997), and imposed management fees on the person who acquired the ownership of the commercial building within six months after the enforcement date, as a matter of course has lost the status of performing the business of a superstore

[1] Articles 1, 1-2, and 23 of the Act on the Ownership and Management of Aggregate Buildings, Article 12 of the Distribution Industry Development Act, Article 6 (2) of the Enforcement Rule of the Distribution Industry Development Act / [2] Article 12 (1) 3 of the former Wholesale and Retail Business Promotion Act (repealed by Act No. 5327 of Apr. 10, 197), Article 8 (1) 1 of the former Enforcement Rule of the Wholesale and Retail Business Promotion Act ( repealed by Ordinance of the Ministry of Trade, Industry and Energy No. 65 of Aug. 2, 1997), Article 13 (2) 3 of the former Distribution Industry Development Act (amended by Act No. 5529 of Feb. 28, 1998), Article 3 (3) of the Addenda (amended by Act No. 5329 of Apr. 10, 1997)

[1] Supreme Court Decision 2007Da83427 decided Oct. 13, 2011 (Gong2011Ha, 2293)

New York Co., Ltd. (Law Firm Incheon Civil Law, Attorney Choi Ho-ho, Counsel for the plaintiff-appellant)

Defendant

Seoul High Court Decision 2007Na5948 decided Dec. 21, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Article 12 of the Distribution Industry Development Act is a business conducted by a person who has registered the opening of a superstore (hereinafter referred to as a "large store operator"), to maintain the order of commercial transactions, to maintain the safety of consumers and residents in their neighborhood areas, and to conduct other business necessary for the prompt maintenance and management of a superstore (paragraph (1)); to ensure that there is a person who directly manages not less than 1/2 of the area of a superstore in the case of a superstore where the superstore is sold in lots, the person who directly manages the superstore (paragraph (2) 1); to ensure that there is no person who directly manages not less than 1/2 of the area of a superstore, the Civil Act or a corporation under the Commercial Act [Article 2 (2) 2 (a)], a cooperative or business cooperative under the Small and Medium Enterprise Cooperatives Act [Article 2 (b) of the same Act], an autonomous management organization [Article 12 (3) of the Distribution Industry Development Act, or a corporation, cooperative or business cooperative under the provisions of item (a) or (b) of the same subparagraph [Article 2 (3) of the same Act shall be subject to the said Act or a person designated by an office];

As above, while the Distribution Industry Development Act grants a general authority on the maintenance and management of a superstore to a superstore manager established by shop occupants who are not a management body under the Act on the Ownership and Management of Aggregate Buildings that is established automatically by all sectional owners, the Act regulates the interests between the sectional owners and the shop occupants in the management of a superstore by requiring them to follow the provisions of the Act on the Ownership and Management of Aggregate Buildings, such as regulations established by the management body that is the organization of sectional owners or resolution of the management body

Therefore, considering the legislative purport of the Distribution Industry Development Act and the relationship with the Act on the Ownership and Management of Aggregate Buildings, the term "matters related to the separate ownership" excluded from the duties of the superstore manager shall be interpreted as the matters that may conflict with the exercise of the ownership of the store owner or infringe on the ownership of the divided owners if permitted to the superstore manager or the superstore manager, among the duties of maintaining and managing the superstore. In addition, the imposition and collection of management expenses, which are the cost of maintaining and managing the superstore, against the merchants who own the superstore by leasing it from the sectional owners or from them, shall not be deemed as the "matters related to the separate ownership" which conflict with the exercise of the ownership of the store owner or may infringe on the ownership of the divided owners, but rather, the establishment of commercial order through the use of the common facilities, consumer protection and convenience promotion, which are necessary for the maintenance and management of the superstore itself (see Supreme Court Decision 2007Da83427, Oct. 13, 2011).

On the contrary, the court below's decision to the effect that "business necessary for the maintenance and management of superstores" performed by the superstore operator or the superstore manager is limited to the actual maintenance and management conducted in the position of representative of the shop occupants, and that the business of imposing and collecting management fees for the sectional owners is not included in the scope of business of the superstore manager under the Distribution Industry Development Act.

However, according to the reasoning of the judgment of the first instance as cited by the court below and the evidence duly adopted by the court below, the plaintiff is deemed to be the "corporation established by the persons who hold more than half of the total area of the store" under Article 12 (1) 3 of the former Do and Retail Business Promotion Act (amended by Act No. 5327 of Apr. 10, 1997), Article 8 (1) 1 of the former Enforcement Rule of the Do and Retail Business Promotion Act (amended by Ordinance No. 65 of Aug. 2, 1997) and was designated as the person to succeed to the status of the market founder of the building of this case as the head of Gyeyang-gu Incheon Metropolitan City, and the plaintiff was performing the duties of the market founder of the building of this case after being enacted and promulgated by Act No. 5327 of Apr. 10, 1997, and the person who established the former Do and Retail Business Development Act (amended by Ordinance No. 13 of the Ministry of Trade, Industry and Energy No. 2 of the former Distribution Industry Development Act No. 3. Do. 10.

In light of the above circumstances, since the Plaintiff did not meet the qualification under the latter part of Article 13(2)3 of the former Distribution Industry Development Act within six months from the enforcement date of the same Act, it is reasonable to view that the Plaintiff naturally lost the status of superstore operators under the former Distribution Industry Development Act upon the lapse of six months from July 1, 1997, which was the enforcement date of the same Act. Therefore, the Plaintiff did not have the right to impose and collect management fees on the instant store owned by the Defendant as of April 9, 204, which acquired the ownership of the instant store.

Therefore, the court below's decision that the superstore operator under the Distribution Industry Development Act is unable to collect management expenses from the sectional owners is justifiable, but the conclusion of rejecting the plaintiff's claim for management expenses of this case is justifiable. Thus, the judgment below's error did not affect the conclusion of the judgment.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)