2019Da245822 Action for the Claim for Delivery of Common Part

Plaintiff:

Attorney Song-chul et al., Counsel for the defendant

Defendant 1 and one other

Law Firm LLC et al.

Attorney Lee Young-hoon

Suwon District Court Decision 2018Na65613 Decided June 12, 2019

October 15, 2020

The part of the judgment below regarding the request for delivery of a building is reversed, and that part of the case is remanded to Suwon District Court. All remaining appeals are dismissed.

The grounds of appeal are examined.

1. Case summary

The reasoning of the lower judgment and the record reveal the following facts.

A. The instant building is an aggregate building on the road surface, which is a commercial building of the size of 2nd underground and 7th ground surface outside of Ansan-si (location omitted). The Plaintiff is an aggregate building on the road surface. The Plaintiff is an apartment building on the first floor, Defendant 2 has a store on the right side of the first floor, and the Defendant Company’s sampling (hereinafter “Defendant Company”) is a co-owner of the first floor underground. B. Of the first floor of the instant building, the part “bb.”, which connects each point of 10-15, and 10 of the attached Table 1 of the lower judgment among the 1st floor of the instant building, is composed of 12 and 13 of the first floor, and the part “b.2 square meters of the instant building” (hereinafter “the instant building”). When seen on the road, there is a store on the right side of the instant building, with the Plaintiff’s 1st floor, and the store on the left side of Defendant 2-12.

The part of the instant building is included in the collective building ledger in the "top toilet, stairs room, corridor, and other common areas", and was used in the entrance and exit of the first underground floor from 200 to 200. The Defendant Company leased the part of the instant building to Defendant 2. The Defendants leased the part of the instant building to Defendant 2. The Defendants: (a) installed a glass door of 2.13 meters in length and part of the stairs connected to the first floor above the ground floor (hereinafter referred to as the "rest door, etc.") with the length of 2.13 meters and 2.12 meters in length (hereinafter referred to as the "gresses, etc.") and closed part of the stairs. The remainder of the stairs are maintained in its form.

Defendant 2, while operating a studio 12 shop on the first floor, uses the instant building part as part of the store, such as the part being used as the entrance and corridor from among the instant building parts, or the part in the upper part of the stairs the center of which is sub-sided.

C. The Plaintiff filed the instant lawsuit seeking removal of a glass door, etc. and delivery of the instant building portion against the Defendants, who exclusively occupied and used the instant building portion on the ground that they are co-owners of the instant building portion, which is the common use area.

2. Whether a co-owner of the section for common use of an aggregate building may request the exclusion of disturbance and delivery against other co-owners who own the section for common use exclusively;

A. If a minority equity right holder of the jointly owned property exclusively occupies and uses all or part of the jointly owned property without consultation with another co-owner, another right holder may not demand delivery of the property as an act of preserving the jointly owned property. However, a right holder may demand the prohibition of removing interference with the jointly owned property or interfering with the joint possession based on his/her own right of share (see Supreme Court en banc Decision 2018Da287522, May 21, 2020).

This legal principle also applies to the common use area (Article 11) of an aggregate building that can be used by the co-owner according to the purpose of the common use area (Article 10(1) and the common use area provided for the common use by all sectional owners, hereinafter referred to as the "total common use area") under the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the " Aggregate Buildings Act"). Therefore, in a case where the sectional owner of an aggregate building occupies and uses the whole or part of the common use area exclusively without the resolution of the management body meeting or the consent of other sectional owners pursuant to the provisions related to the Aggregate Buildings Act, other sectional owners may not request the transfer as the preservation act of the common use area, and barring special circumstances, may request the prohibition of the act of removing interference with the common use area or interfering with the common use area on the basis of his/her own ownership.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

The building of this case was approved for use on February 25, 1987. The building of this case, which is the corner of the 1st floor above ground, and the 12th floor and 13th floor were all included in the fireproof room, stairs room, corridor, and other sections for common use at the time of being registered in the collective building ledger. The 1st floor was the retail store on March 22, 1990, and the 12th floor was the 1st floor was the 17th neighborhood living facilities (retail stores) on December 17, 1993. Ultimately, only the section for common use of the building of this case remains.

In the aggregate building ledger of the building of this case, the section for common use of the building of this case, including the section for the building of this case, is indicated as the section for common use of the 1st floor of this case, which is 7.173m of the area calculated by dividing and calculated in proportion to

At the time of the registration of the aggregate building register of the instant building, if the building was 1st underground floor through stairs connected to the instant part at the time of the registration of the said building, it was connected with toilets, stairs rooms, and corridors, which are the section for common use of the first underground floor. The structure that can access the section for common use of the first floor from the second floor to the 7th floor above the ground was that the section for common use of the 1st floor below the ground was changed to the sales facility which is the section for exclusive use on March 22, 1990. The instant section for common use of the 349.85 square meters was used by the owner on March 22, 1990. The instant section for common use of the 1st and second floor was used by the owner of the 1st floor to enter the underground floor and the 1st floor, and the Defendant Company, the lessor, at around 2000, closed the 1st floor and the 2nd floor of the instant building.

According to the design drawings at the time of approval for the use of the building of this case, stairs connected from the first floor to the second floor above the ground through the building of this case were installed, but it seems to have been removed after the modification of design.

The Defendant Company temporarily closed the stairs among the parts of the instant building, but maintained the structure of stairs in preparation for the use of stairs due to a change in the category of the tea.

C. Examining these facts in light of the legal principles as seen earlier, the following determination is possible.

The instant building section, along with Nos. 12 and 13 of the first floor, was built as a passage to enter the underground floor and the second floor above the ground of the instant building. The section for common use of the first floor below the ground was used as a passage to enter the first floor above the ground before the purpose of use is changed to the section for exclusive use, and was the part allowing access to all the floors of the instant building. The instant section for common use of the building can be used as an emergency exit, entrance, etc. In the structure of the building. Therefore, it is reasonable to view the instant section as the entire section for common use.

The Plaintiff, as co-owners of the building of this case, may not request the Defendants, who are other co-owners exclusively possess the part of the building of this case where the glass door, etc. is installed, to transfer the building of this case. However, the Plaintiff may request the removal of the building of this case, such as the glass door, etc. installed on the building of

D. Nevertheless, the lower court, as an act of preserving jointly-owned property, deemed that the Defendants may demand the delivery of the instant building portion, and accepted the Plaintiff’s claim for this part. In so doing, the lower court erred by misapprehending the legal doctrine as to the act of preserving jointly-owned property, which was the receipt of a request for delivery of

The error affected the conclusion of the judgment.

Meanwhile, it is inappropriate for the court below to consider the Plaintiff’s claim for removal as an act of preserving the jointly owned property. However, as seen above, the conclusion that the court below accepted the Plaintiff’s claim for removal, such as the Plaintiff’s glass, is justifiable, and there is no error affecting

3. Judgment on the Defendants’ grounds of appeal

A. Whether the part of the instant building constitutes the section for partial common use (Defendant 2’s ground of appeal No. 1 and Defendant Company’s ground of appeal)

(1) According to the reasoning of the lower judgment and the record, the following facts are revealed.

On May 192, 1992, there was a resolution of the management body meeting in accordance with the written agreement of 11 persons among the 13 sectional owners of the instant building and 4,639.49m of voting rights (hereinafter referred to as “192 resolution”). Paragraph 2 of the resolution state that “the resolution was made by the management body meeting in 1992, the 3,772.57m of square meters among the 13 sectional owners of the instant building (hereinafter referred to as “the 1992 resolution”). The resolution state that “the first floor stairs, openings, and HALL 36.1m of square meters and retail stores, 8.1m of Do 44.20m of Do 44.20m of Do 349.85m of underground sales facilities are installed arbitrarily for the purpose of the sole use of the 349.8m square meters of land and other sectional ownership are not independent from the

The Korean Bar Association of 199 Gao-ro was a sectional owner of the first floor underground of the instant building before the Defendant Company. As seen above, the instant building portion constitutes the entire common area of the instant building.

(2) In light of these facts, the 1992 resolution confirms that the part of the building of this case is owned by the Korean War Veterans Association 000 on the premise that it is independent in structure and use of the building of this case.

the section for partial common use only for the purpose of this section.

It is difficult to readily conclude it.

Although the reasoning of the lower judgment is inappropriate, the conclusion that the instant building portion does not constitute the partial common use area is justifiable. On a different premise, the prior argument in the grounds of appeal is rejected.

B. Whether the judgment was omitted (Defendant 2’s ground of appeal No. 2)

(1) Defendant 2 asserts as follows. The Defendants asserted in the preparatory document dated March 11, 2019 as stated on the date of the second pleading of the lower judgment that the Defendants acquired the right to use the instant building with no fixed time limit set by the resolution of 1992. However, the lower court omitted its judgment.

(2) According to the record, the following facts are revealed.

The Defendants’ legal representative asserted to the following purport in the preparatory document dated March 11, 2019, stated on the date of the second pleading of the lower judgment. The instant building portion can be deemed as a section for exclusive use, and even if not, it constitutes a section for partial common use. Article 14 of the Aggregate Buildings Act provides that “The matters concerning the interests of all sectional owners among the matters concerning the management of the section for partial common use and matters prescribed by the rules under Article 29(2) shall be determined by a resolution of all sectional owners’ assembly, and other matters shall be determined by a resolution of a resolution of a sectional owners’ assembly.” As regards the instant building portion, the method of use was already determined by the resolution of all sectional owners’ assembly.

(3) In light of such factual relations, it is difficult to view that the Defendants asserted that the right to use the instant building was granted by the resolution of 1992 at the lower court, and thus, it is difficult to accept the first ground for appeal on a different premise. Furthermore, even if examining the records in light of the records, it cannot be deemed that the Defendants acquired the right to use the instant building by the resolution of 192 without setting a deadline for the instant building.

C. In a lawsuit for performance of standing to sue (the grounds of appeal by the Defendant Company), the Plaintiff’s claim itself stands in place, and such determination is absorbed into a judgment as to the propriety of the claim (see Supreme Court Decision 92Da11848, Jun. 12, 1992).

The lower court, based on the judgment of the first instance court, determined as follows. The Defendant Company asserts that the Plaintiff’s succession to the rights and obligations pursuant to the resolution of 1992 is not eligible to bring the instant lawsuit. However, the determination on standing to sue is included in the determination on the propriety of the claim,

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on standing to sue.

4. Conclusion

Of the judgment below, the part of the claim for delivery of a building is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All remaining appeals are dismissed. It is so decided as per Disposition by the assent of all

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok