(a) Whether a manager transferred at the management body meeting of the aggregate building is qualified as a party to a lawsuit to suspend any act contrary to common interests;

(b) Whether a sectional owner designated by the management body meeting of the aggregate building has the standing to institute a lawsuit against the suspension of acts contrary to common interests;

(a) Where a sectional owner of an aggregate building has committed an act detrimental to the preservation of a building, or any other act contrary to the common interests of sectional owners in regard to the management and use of a building, and where he intends to file a judicial claim such as the suspension or prohibition of its use, he shall be entitled to standing to sue by the management body of the aggregate building, and the manager appointed by the management body meeting shall be entitled to conduct an act as the representative

B. According to the provisions of Article 43(1) and (3) of the Act on the Ownership and Management of Aggregate Buildings, a sectional owner who was designated by the resolution of the management body meeting of an aggregate building may, if the resolution of the management body meeting is adopted, become a party to the lawsuit and request the suspension of acts contrary to common interests as a lawsuit separately from

Articles 25 and 43 of the Multi-Unit Residential Building Act

SUBE

Defendant 1 and two others

Seoul District Court Branch of the Seoul District Court (85 Ghana1629)

1. (A) The Plaintiff’s appeal as to the primary claim against Defendant 2 is dismissed.

(B) Of the original judgment, the part of the conjunctive claim against the Plaintiff between the Plaintiff and Defendant 2 shall be revoked.

(C) Defendant 2 shall not have access to the establishment of a reading room in the real estate of subparagraphs 1 through 12 of the attached list.

2. The plaintiff's appeal against the defendant 1 and 3 and all of the above defendants' appeal are dismissed.

3. All the costs of appeal arising between the plaintiff and the defendant 2 are divided into two parts of the costs of appeal between the plaintiff and the plaintiff 1 and the remaining one shall be borne by the plaintiff, and the costs of appeal against the defendant 1 and 3 shall be borne by the plaintiff, and the costs of appeal against the plaintiff against the above defendants shall be borne by the above defendants.

4. The above paragraph (1) (c) above may be provisionally executed.

1. Revocation of the part of the original judgment against the plaintiff's primary claim shall be revoked;

2. The primary purport of the claim

(A) Defendant 1

(1) With respect to the real estate listed in subparagraphs 1 through 7 of the annexed list, the date of receipt of the entry in the annexed list with the Southern Branch of the Seoul District Court and the procedure of cancellation of ownership transfer registration in the receipt number will be implemented.

(2) No person shall enter the above real property.

(B) Defendant 3:

(1) With respect to the real estate listed in subparagraphs 8 through 12 of the annexed list, the date of receipt of the entry in the annexed list and the procedure of cancellation of ownership transfer registration in the receipt number will be implemented.

(2) No person shall enter the above real property.

(C) Defendant 2:

No person shall enter the real estate referred to in subparagraphs 1 through 12 of the attached list.

(D) Court costs are assessed against the Defendants and a declaration of provisional execution

3. Preliminary purport of claim

(A) Defendant 1 shall not have any other person install a reading room or allow any other person to install a reading room in the real estate of subparagraphs 1 through 7 of the attached list, and Defendant 3 shall not have any other person install a reading room in the real estate of subparagraphs 8 through 12 of the attached list.

(B) As to Defendant 2, the same judgment as the Disposition No. 1 (c) is sought.

(C) The purport of the appeal by the defendant 1 and 3 against the judgment that the costs of lawsuit shall be borne by the defendants and provisional execution declaration

The plaintiff's claim against the conjunctive claim in the original judgment shall be revoked and the plaintiff's claim against it shall be dismissed.

The court costs are assessed against the plaintiff of the first and second instance court.

1. The present situation of the building in this case (name omitted) and the relationship between the original and the Defendant

The plaintiff 1 and 3 used the above 1984.7. The plaintiff 1 and 2 used the above 194.7 Do office building's 1 to 7 and the above 19. 6 Do office building's 12 (the above 4th office building's 1 to 3th office building's 4th office building's 5th office building's 9th office building's 2th office building's 196th office building's 2th office building's 9th office building's 196th office building's 17th office building's 17th office building's 2th office building's 196th office building's 17th office building's 196th office building's 2th office building's 196th office building's 17th office building's 196th office building's 2nd office building's 10th office building's 10th office building's 100.

2. Judgment on the main claim

(A) Defendant 1 and 3 concluded a sales contract with the Plaintiff that they will not use the instant real estate for any purpose other than the office at the time of the Plaintiff’s death. Since the Defendant et al. violated this agreement, the Plaintiff cancelled the sales contract by serving the contract in accordance with the right of termination reserved in the sales contract, and based on the recovered ownership ownership, Defendant 1 and 3 shall be subject to the execution of the procedure for cancellation of ownership transfer registration prior to the instant real estate and the prohibition of entry into the instant real estate, and Defendant 2 shall seek the prohibition of entry into the instant real estate. The Plaintiff’s claim against the Defendants against the instant real estate shall be made in the position of the manager of (name omitted of the building) building or in the position of the sectional owner designated at the meeting of the building management body (name omitted) under Article 43 of the Act on Ownership and Management of Condominium Buildings (hereinafter “Building Act”) for the common interest of the instant real estate in the building.

(B) Judgment on the plaintiff's claim for cancellation of sales contract

The fact that the real estate was sold to the office at the time of the sale contract between the Plaintiff and Defendant 1 and Defendant 3 is as seen above. According to the above evidence Nos. 3 (Building Sale Contract), the Defendants, at the time of the sale contract, can not use the (name omitted) building for any purpose other than the office purpose, or modify, remodel, or extend the shape for any purpose other than the seller's use, for the maintenance of dignity and reasonable management and operation of the building (Article 10 of the sale contract) without the seller's consent, and the Plaintiff shall cancel the sale contract (Article 13 of the sale contract) without the due process such as the peremptory notice of performance. No counter-proof exists, and the Defendants provided the real estate to Defendant 2 for the purpose of reading and make preparations for the installation of reading room by the above Defendants as well as the above facts that Defendant 2 leased the real estate to the third party for the purpose of reading room in violation of the above provision. Thus, it can be seen that the Plaintiff can cancel the sale contract on the ground that the Plaintiff leased it to the third party.

A sectional owner of an aggregate building may freely dispose of his section of exclusive ownership, which is not an act detrimental to the preservation of the aggregate building or any other act detrimental to the common interests of other sectional owners (Article 211 of the Civil Act and Article 5(1) of the Aggregate Buildings Act), and, if an act detrimental to the common interests of sectional owners exists, it may take remedial measures against such an act. However, in a case where the degree of the offense is minor, the sectional owner or possessor who has committed the offense may suspend such act, remove the result of such act, and take measures necessary to prevent such act (Article 43(1) and (3) of the Aggregate Buildings Act). Provided, That if such action is requested by a majority of the management body meeting, it must be decided (Article 43(2) of the Aggregate Buildings Act). If it is extremely difficult to secure the use of the section of exclusive ownership or to maintain the common life by removing the obstacle from the request of the management body meeting so far as it is extremely difficult to do so, the sectional owner’s right to demand the prohibition of use of exclusive ownership or its special resolution.

Therefore, even if the seller of an aggregate building can withhold the right to cancel the contract for the sale in accordance with the agreement between the parties to the sale in lots, in order to maintain the community life in the aggregate building and to protect the common interests of the sectional owners, and in preparation for the violation of this agreement, the principal purpose of the contract is achieved in principle when the payment of the purchase price and the transfer of ownership are completed in the sale in the sale in lots. The owner of an aggregate building also has the right to freely use, benefit from, and dispose of the section of exclusive ownership as mentioned above. Even if there is an act contrary to the above restriction of the owner of an aggregate building, sanctions against it under the Aggregate Buildings Act are requested to suspend it according to the degree of such violation (Article 43 of the Aggregate Buildings Act), the request for prohibition of use (Article 44 of the Aggregate Buildings Act), the request for auction (Article 45 of the Aggregate Buildings Act), the request for cancellation of the contract by the management body meeting, the special resolution of the sectional owners, and the procedure for strict interpretation of the right to impose sanctions against the buyer's breach of the contract.

In this case, it is very difficult to interpret the requirements of the right to cancel an agreement under Article 13(1) of the above sales contract that the plaintiff may cancel the sales contract when the above defendants used it for a purpose other than the purpose of sale in lots, change of shape, or rebuilding, etc., as seen in the exercise of the right to cancel an agreement under Article 13(1) of the above sales contract, such as the exercise of the right to claim an auction under Article 45 of the Multi-Family Building Act, and thus, it is very difficult to secure the use of the co-ownership or maintain the co-ownership of the co-ownership because other sectional owners' communal living obstacles are remarkable due to the above defendants' violation of the contract, and

In addition, if it is based on such interpretation, breach of duty to use the real estate in the reading room to the extent that it is used as a reading room shall not be deemed to fall under the case of uncertainty of breach of duty and other sanctions, which is a requirement to recognize the occurrence of the right to rescind the contract.

Therefore, the plaintiff's right to cancel the above contract is not generated, and the registration for cancellation of ownership transfer and the part of the claim for prohibition of entry under the premise that the above contract was cancelled, without any further reason, is without merit.

(C) Judgment on the claim for prohibition of entry, etc. sought in the capacity of the manager of the building (name omitted)

The plaintiff asserts that, as the cause of the claim in this case, the plaintiff was appointed as the manager at the management body meeting of the building (name omitted) on August 9, 1985, and that, as the manager, the defendant 1, 3, and defendant 2, who are the sectional owners engaging in the act harmful to the preservation of the building (name omitted), the claim for the prohibition of access to the building (name omitted) and the prohibition of reading room.

However, in case where a sectional owner of an aggregate building has committed an act detrimental to the preservation of a building, or any other act detrimental to the common interests of the sectional owners as to the management and use of a building, and where he intends to file a judicial claim such as the suspension or prohibition of use thereof, the management body of the aggregate building has standing to sue, and the manager appointed by the management body meeting has no independent standing to act as the representative of the management body, and it is apparent in the interpretation of the Aggregate Buildings Act (the following is deemed that the sectional owner designated by the management body meeting of the aggregate building has standing to act as the representative of the management body), and it is apparent in the record that the plaintiff does not institute the lawsuit in the name of the management body of the building (the name of the building omitted). Thus, it is obvious that the plaintiff does not have standing to act as the representative of the management body of the aggregate

(D) Determination as to the claim for prohibition of entry, which is sought as a designated sectional owner

(i)Standing to sue;

In relation to the instant real estate, we examine whether the Plaintiff, as a sectional owner designated under the Aggregate Buildings Act, can file a claim against the Defendant, etc. who is the same sectional owner and its occupant for prohibition of entry.

The court below's witness's testimony held that Gap evidence Nos. 8 (name omitted), Gap evidence No. 9 (the first meeting minutes of the building name omitted), Gap evidence No. 9-1 and 2 (the minutes and written resolution of the building name omitted), and the whole purport of the pleadings in the testimony of the above witness. The owners of (name omitted) building are 26 persons including the plaintiff and the defendant, etc., and the owners of the first meeting of the building management body of the building (name omitted) held the first meeting of the building management body of the building (name omitted) (23 of the building name omitted) building management body of the building (number No. 26 of the building name omitted) which are established and appointed by the plaintiffs, and the defendants designated and resolved as the plaintiff in the status of the sectional owner so that they may not temporarily install the reading room of the real estate of this case, and no counter evidence may be otherwise asserted.

However, according to Article 43 (1) of the Aggregate Buildings Act, if a sectional owner of an aggregate building commits an act detrimental to the preservation of a building or any other act detrimental to the common interests of the sectional owner in light of the management and use of the building, or if such act is likely to be done, the manager or the sectional owner designated by the resolution of the management body meeting may request for suspension of such act, removal of the result of such act or measures necessary to prevent such act for the common interests of the sectional owner, and Paragraph (2) of the same Article provides that "the lawsuit under paragraph (1) must be brought by the management body's resolution," and Paragraph (3) of the same Article provides that "the provisions of paragraphs (1) and (2) of the same Article shall apply mutatis mutandis to the possessor of an exclusive ownership who is not the sectional owner," and in detail, the sectional owner designated by the resolution of the management body's meeting may request suspension of acts contrary to the common interests by becoming a party to the lawsuit, separate from the manager.

However, at the management body meeting of (name omitted) building, as seen earlier on August 9, 1985, the plaintiff designated the plaintiff to bring the suit as a sectional owner against the defendant et al., and therefore, on July 31, 1985, it shall be deemed that the plaintiff satisfied the requirements of lawsuit lacking at the time of filing the suit in this case. Thus, the plaintiff has standing to sue to bring the suit in this case.

On the other hand, the interpretation that only the sectional owner who was designated in the resolution of the management body meeting has the right to conduct a lawsuit in the capacity of the management body meeting only when the manager is not in the capacity of the management body's temporary representative body is against the provisions of Article 43 (1) of the Aggregate Buildings Act, which is stated above, and that the act contrary to the common interests is an infringement on the sectional ownership, and the interpretation that the sectional owner does not seek the exclusion of the infringement directly in his own name and is the subject of the act by the management body as the agent of the management body's act, which limits the sectional owner's right to claim the exclusion of the infringement on behalf of the sectional owner. On the other hand, in a case where the act contrary to the common interests falls short of the whole group, it is more reasonable to allow the sectional owner who was in interest to seek the exclusion of the act at his own expense with the resolution of the management body meeting. Thus, even if the management body's manager is not in existence, if there is a resolution of the management body's meeting, the plaintiff of the defendant cannot be accepted.

(2) The temporary installation and common interest of the reading room.

위 갑 제2호증의 1 내지 12, 갑 제4호증, 갑 제5호증, 갑 제20호증의 2, 각 인증부분에 다툼이 없으므로 사문서부분의 진정성립이 추정되는 갑 제21호증의 1 내지 3(각 확인서). 갑 제22호증(확인서), 갑 제34호증의 1( (명칭 생략)독서실 빌딩실태), 같은호증의 2 내지 10(각 사진), 갑 제35호증의 1(확인서), 같은호증의 2(계약서), 같은호증의 3(확인서), 갑 제36호증의 1,2(각 사진), 원심증인 소외 1의 증언에 의하여 각 그 진정성립이 인정되는 갑 제6호증의 1,2(각 광고), 갑 제7호증(관리규정), 갑 제9호증( (건물명 생략)빌딩관리단 1차 회의록), 갑 제15호증의 1,2(각 확약서)의 각 기재와 원심증인 소외 1의 증언 및 원심법원의 검증결과를 종합하면, 원고는 이 사건 부동산이 포함된 (건물명 생략)빌딩을 신축함에 있어 지하1층의 근린생활시설과 지하 2,3,4층의 기계실, 주차실 등을 제외하고 지상 1 내지 14층 모두를 사무실로 하여 건축허가를 받아 신축하였고 이를 분양함에 있어서 위 건물을 사무실 전용건물로 선전광고하여, 피고 1, 3에 대하여는 물론 다른 피분양자에 대하여도 그 용도를 사무실로 특정하여 분양하였으며, 그 분양이 60퍼센트 정도 완료된 현재 분양 또는 임대된 지상층 부분중 이 사건 부동산을 제외한 모든 구분소유부분이 별지 입주자현황표 기재와 같이 사무실로 사용되고 있는 사실, 이 사건 건물인 위 (건물명 생략)빌딩의 소재지는 여의도의 중심부로서 증권거래소, 증권거래협회, 주택은행등의 사무실과 미원아파트, 미주아파트, 수정아파트, 한양아파트 등의 집합주택이 밀집되어 있는 곳이며, 위 여의도 일대에는 우영, 오륜, 한가람, 여의, 진학, 예일, 대교, 장미, 성지독서실등이 산재하여 있으나 그 독서실이 들어서 있는 건물은 모두 5층 이하의 상가 또는 근린생활시설로 사용되는 건물인 사실, 위 (건물명 생략)빌딩의 10층에 위치한 이 사건 부동산은 총 전용면적이 718평방미터 27로서 화장실, 승강기, 급기 및 배기의 시설용량상 약 120명 가량이 사용할 수 있게끔 건축되어 있으며 현재 위 (건물명 생략)빌딩중 10층을 제외한 나머지층의 상주인원은 약 50명 내지 100명에 이르러 1층당 평균 상주인원은 약 70명이고, (건물명 생략)빌딩의 구분소유자 및 입주자들의 합의에 의한 (건물명 생략)빌딩관리규정에 따르면 위 건물의 현관출입문의 개문시간은 하절기에 07:30부터 20:30까지, 동절기에 08:00부터 20:00까지이며 지하층 출입문의 개문시간은 하절기에 06:00부터 22:30까지, 동절기에 07:00부터 22:00까지이되 공휴일은 폐문함을 원칙으로 하고, 승강기의 운행시간은 하절기에 평일은 08:00부터 19:30까지 토요일은 08:00부터 16:00까지, 동절기에 평일은 08:00부터 19:00까지 토요일은 08:00부터 15:00까지이며, 냉난방가동은 6월 중순부터 8월말까지와 11월 중순부터 3월말까지로서 평일은 09:00부터 18:00까지, 토요일은 09:00부터 13:00까지이되 공휴일은 냉난방가동을 하지 아니함을 원칙으로 하고, 입주가 폐문시간 이후에 연장근무를 하고자 하는 경우에는 그날 17:00까지 관리자에게 서면으로 신고한 후 할 수 있되 적어도 22:30까지는 퇴실하여야 하고 휴일근무를 하고자 하는 경우에도 근무일전 14:00까지 관리자에게 서면으로 신고한 후에만 출입할 수 있게 되어 있는 사실, 그런데 피고 2가 사설강습소인가를 받은 위 가칭 (독서실명 생략)독서실은 그 정원이 415명으로서 이 사건 부동산의 수용인원 능력의 3배를 초과하고 있으며 통상 독서실을 이용하는 사람들은 자정에 가깝게 혹은 밤을 세워 공부하는 경우가 많아 이 사건 부동산에 위 독서실이 개설되는 경우 출입문의 개폐시간, 승강기의 운행시간, 냉난방가동시간상의 부적합함과 그밖에 화재나 도난발생의 위험 등이 있는 사실을 인정할 수 있고, 을 제6호증의 1(등기부등본), 같은호증의 2(건축물관리대장), 을 제7호증(분양계약서), 을 제9호증(사진), 을 제10호증의 1(여의도내 독서실의 지도), 같은호증의 2 내지 6(각 건축물관리대장), 을 제11호증(지도)의 각 기재는 위 인정에 아무런 방해가 되지 아니하고 달리 반증이 없다.

According to the above facts, the provisional installation of the reading room by the defendants is an act harmful to the preservation of the building under Article 43 (1) of the Aggregate Buildings Act, and other acts against the common interests of the sectional owners regarding the management and use of the building.

(iii)a reasonable measure;

According to Article 43 (1) of the Aggregate Buildings Act, in a case where there is an act contrary to the above common interests, the removal of the act, removal of the result thereof, or measures necessary to prevent such an act shall be the minimum measure to the extent that would bring about common interests of other sectional owners. It shall not be prejudicial to the essential contents of the sectional owner or possessor's sectional ownership or possessor's sectional ownership.

However, the plaintiff filed a claim for the prohibition of entry into the real estate of this case as preventive measures against the defendants who intend to install the reading room, but it is not a minimum measure to prevent the entry into the real estate of this case in full and in full, to prevent the entry into the real estate of this case, but it is a violation of the defendants' sectional ownership, right of possession, or essential contents of the right of possession. Therefore, it is not reasonable.

3. Judgment on the conjunctive claim

(A) (1) The Plaintiff asserts that Defendant 1 and 3, the purchaser of the instant real estate under Article 10 of the above sales contract, agreed to use the reading room for purposes other than the office without the Plaintiff’s consent for the maintenance of dignity and reasonable management and operation of the building, and that the Defendants, who intend to install the reading room in violation of this agreement, shall have the right to prevent the sale in lots (2) pursuant to the right to prevent the sale in lots, as the sectional owner designated by the resolution of the meeting of the building management body, pursuant to Article 43(1) of the Aggregate Buildings Act, shall file the instant claim, such as the entry in the conjunctive claim,

(B) Defendant 1 and 3, upon the delivery of the instant real estate, have leased it to Defendant 2 for the purpose of the installation of a reading room, and Defendant 2 is equipped with facilities for the installation of a reading room and takes legal procedures for authorization and permission to the pertinent authorities. The (name omitted) management body meeting of the building designated and resolved to file a lawsuit for the suspension and prevention of the installation of the reading room, and as seen earlier, the said provisional installation of the reading room is harmful to the preservation of the (name omitted of the building) building and is contrary to the common interests of other sectional owners for the management and use of the (name omitted of the building) building. As such, Defendant 1 and 3, as a sectional owner of the instant building, are obligated not to install a reading room or allow other persons to install a reading room, and Defendant 2, as an occupant of the instant building, is not obligated to have access to the instant provisional installation necessary for the prevention of the temporary installation of the reading room pursuant to Article 43(1) of the Aggregate Buildings Act, and thus, the Plaintiff’s claim for access to the instant real estate.

4. Conclusion

Therefore, the plaintiff's main claim against the defendants in this case is dismissed without any ground, and the conjunctive claim is accepted. Since the part of the judgment between the plaintiff and the defendant 2 in the original judgment is dismissed differently from the party members and part of the conjunctive claim, the part of the judgment is revoked in part, and the plaintiff's appeal against the defendant 2 is dismissed unfairly, and the part of the judgment against the defendant 1 and the defendant 3 in the original judgment is dismissed. The part of the judgment against the plaintiff's main claim against the above defendant is just in conclusion with the party members. The appeal against the plaintiff and the above defendants is dismissed in entirety, and it is so decided as per Disposition by applying Articles 89, 92, 93, 95, and 96 of the Civil Procedure Act, Article 6 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc.

Judges Lee Jae-joon (Presiding Judge)