(영문) 서울고등법원 2019. 5. 30. 선고 2018누52060 판결

2. The Defendant’s Intervenor’s Intervenor’s Intervenor’s Intervenor’s participation in the costs of appeal and the remainder are assessed against the Defendant.

Purport of claim and appeal

The judgment of the first instance is revoked. All of the plaintiffs' claims are dismissed.

Reasons

1. Details of the disposition;

This court's reasoning is as follows: "Co-owners are registered as co-owners" in Section 2, Section 13, and Section 14 of the judgment of the court of first instance; "Co-owners of the commercial building of this case" in Section 17 are as stated in the corresponding part of the judgment of the court of first instance (Chapter 10 to Chapter 14 of the judgment of the court of first instance) except for the case where "the co-owners of the commercial building of this case are registered as co-owners of the commercial building of this case" and "the co-owners of the commercial building of this case" are as stated in the corresponding part of the judgment of the court of first instance (Chapter 2

2. Judgment on the defenses before the merits of the Intervenor joining the Defendant

The Intervenor joining the Defendant: (a) the Plaintiffs and the Intervenor appointed Plaintiff 28 as the representative of the instant shopping district as the representative; and (b) Plaintiff 28 appointed as the representative consented to the establishment of the instant association; and (c) the Plaintiffs were the members of the Intervenor; (d) there is no legal interest in seeking revocation of the instant association establishment authorization; and therefore, (e) the instant lawsuit should be dismissed in an unlawful manner.

If Gap evidence Nos. 33, 43, Eul, 10, and 11 (including branch numbers; hereinafter the same shall apply) added the purport of the whole pleadings, 46 of the owners of the commercial building of this case appointed plaintiff 28 as their representative around June 2017, and around that time, the plaintiff 28 submitted a written consent to the establishment of the partnership to the defendant joining the defendant, and thereafter, the supplementary intervenor 1, among the owners of the commercial building of this case, agreed to select the plaintiff 28 as their representative, and further, the non-party (the supplementary intervenor 10) who is the owner of the commercial building of this case, also submitted the written consent to the establishment of the defendant joining the defendant.

However, the above evidence and evidence and evidence Nos. 28, 2, and 19 added to the purport of the entire pleadings, i.e., the plaintiffs and the Intervenor expressed their intent to agree to establish an association after the disposition of this case, not to consent to the establishment of the Intervenor. 28 ex post factoly after the disposition of this case, the Plaintiffs and the Intervenor expressed their intent to consent to establish an association. ② The Plaintiffs and the Intervenor expressed their intent to consent to establish an association ex post facto as above. The Intervenor brought a lawsuit against the Plaintiffs and the Intervenor for objection on the ground that the Intervenor did not consent to establish an association, and the Plaintiff’s Intervenor did not object to forced settlement of cash. In response, the determination on the legality of the disposition of this case pursuant to the above declaration of intention was made without reservation (the Plaintiffs’ consent to establishment of the association before June 2017, 201). If the Intervenor submitted a written consent on the establishment of the association to the Intervenor and the Intervenor’s assertion that there is no procedural defect in the above disposition of this case and the Intervenor’s procedural interest against the Intervenor’s submission of this case.

Therefore, the Defendant’s Defendant’s defense prior to the merits cannot be accepted (Supreme Court Decision 96Nu10379 Decided August 21, 1998, which is invoked by the Defendant’s Intervenor, is a case where the members who agreed to establish a housing association from the beginning dispute the illegality of the approval disposition of the housing construction project plan, and it is inappropriate to invoke this case as it differs from this case).

3. Whether the instant disposition is lawful

A. Summary of the plaintiffs and supplementary intervenors

The reasoning for this part of this Court is as stated in the corresponding part of the judgment of the court of first instance (No. 3, No. 17, No. 3, No. 14). Thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act, the main sentence of Article 420 of the Civil Procedure Act.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the assertion of procedural illegality

A) Type of possession of the instant commercial building

(1) In order to establish sectional ownership for one building, there must be an act of separating the physically partitioned part of the building from an objective and physical aspect to maintain independence for its structure and use. Here, structural independence is required because the scope of physical control over the objects which mainly become the object of sectional ownership is not necessary because the scope of sectional ownership can not be determined by structural classification, but it cannot be said that there is structural independence if it is impossible to determine the scope of the objects of sectional ownership pursuant to structural classification. However, as to a commercial building within a certain scope, signs which can clearly identify the boundary of an aggregate building pursuant to Article 1-2 of the Act on Ownership and Management of Condominium Buildings (hereinafter “Aggregate Buildings Act”) can be the objects of sectional ownership by clearly attaching building number signs assigned to each sectional owner on the floor and setting up 10 separate buildings. In addition, the physical independence of the building should be determined by the Supreme Court, even if the relevant building becomes the object of sectional ownership independently, and it can be objectively recognized that it is an object of sectional ownership under Article 1-2 of the Act on Ownership and Management of Condominium Buildings.

(2) In full view of the following facts and circumstances, it is reasonable to see that the commercial building of this case is divided into 54 units independent from the structure and use of the commercial building of this case, and that there was the act of division into the object of sectional ownership by entering into a sales contract for each of the above units of commercial buildings and the act of division into the object of sectional ownership. Thus, even if the sale is not registered as a sectional building, the sectional ownership of each of the above units of commercial buildings was established as the object of sectional ownership in 1986 in 1986, where 48 persons, including the plaintiffs and supplementary intervenors of the plaintiffs and the plaintiffs, who were registered as co-owners of the commercial building of this case, were established as co-owners of the commercial building of this case, and the co-ownership relation was formed between the co-ownership of the commercial building of this case by completing the registration of sectional ownership in accordance with the convenience of co-ownership.

① From 1986 to 1986, the commercial building of this case is a building with the second and third floors above the ground, and after the new construction of the commercial building and the completion of preservation registration (at the time, before the Act was enacted, the registration as a general building which is not the registration of division was made) the unit, location, and size of the commercial building was specified and sold to 54 commercial units under the Act on the Ownership and Management of Aggregate Buildings (see Article 11 of the Commercial Building Act among the certificate of No. 16 of this case, the registration of ownership transfer was completed for the buyers of the commercial building corresponding to the ratio of the area of each unit, and the owners of the commercial building of this case sold the commercial building of this case to the transferee of the right to the commercial building of this case. The 48 persons registered as co-owners of the commercial building of this case were acquired by the transferee of the right to the commercial building in this way.

② Among the 54 individual commercial rooms, the remaining commercial rooms, excluding the 9 commercial lakes located in the 1st floor among the 54 individual commercial rooms, are clearly identified as the outer walls, and they can pass through the way to the common use area without passing through another separate entrance. Meanwhile, the 9 commercial rooms located in the 1st floor are not installed with the outer walls closed into the open commercial building, but their boundaries are specified by installing each structure on the basis of the boundary marks of the floor. In addition, each commercial room is managed and used as an independent store independent of another commercial building. Considering these circumstances, the above 54 commercial rooms are independent of each other (whether the boundary marks prescribed by the Enforcement Decree of the Act on the Ownership and Management of Aggregate Buildings are installed or not, so it cannot be concluded that the above boundary marks are not installed. Moreover, the commercial building has the essential characteristics of the building, unlike the housing, and thus its independence should also be considered in judging whether it is open.)

③ The tax authorities, including the Defendant, imposed property tax, etc. by specifying each of the instant commercial areas, and the business registration certificate also specified and issued each of the instant commercial areas. The Defendant’s Intervenor also assessed the previous and the instant commercial areas in a manner that calculates and addss the base value of each of the instant commercial areas. The management fee of the instant commercial areas is imposed for each of the individual commercial areas. Such circumstances also clearly indicate the independence in the structure and use of each of the instant commercial areas and the existence of the intention objectively expressed in the outside.

④ At the time of November 2015, persons registered as co-owners of the instant commercial building filed an application for conversion to the building ledger with the Defendant to make a registration of division on the instant commercial building. However, the application was rejected on the ground that illegal buildings exist on the underground floor of the instant commercial building, and the conversion to the building ledger and the registration of division was not made to the sectioned building.

⑤ Meanwhile, the Intervenor asserts to the effect that, inasmuch as the drawing was either partitioned through the accurate survey at the time of the sale of the commercial building or the drawing indicating the exact size and number of each commercial building was not prepared, the independence in the structure and use of each commercial building of the commercial building of this case or the existence of the act of division cannot be recognized. As the Defendant asserts, as to the layout drawing (No. 52 No. 1) at the time of the sale of the commercial building of this case and the current status of the building (No. 27 and No. 30) at the time of the sale of the commercial building of this case and the drawing (No. 29) attached to the registration certificate, it is difficult to conclude that the drawing attached to the above registration certificate has been prepared at the time of the sale of the commercial building of this case or that the current status of the commercial building of this case has been accurately reflected, it is difficult to view that the above difference in the above drawing has become an independent and independent feature of the sale of the commercial building of this case, as seen earlier, some of the sectional ownership of this case had been removed.

(6) In addition, the Intervenor asserts to the effect that, among the instant commercial buildings, nine commercial buildings are not sales facilities or transportation facilities, and the total floor area of which is not less than 1,00 square meters, and thus, the instant commercial building does not fall under the requirements prescribed in Article 1-2 of the Aggregate Buildings Act. However, Article 1-2(1)1 of the Aggregate Buildings Act provides that, “the use of the sectioned store is a sales facility under Article 2(2)7 of the Building Act and a transportation facility under subparagraph 8 of the same paragraph (excluding collection and delivery facilities),” and subparagraph 2 provides that “the total floor area of the first floor and transportation facilities, including the sectioned store, shall be not less than 1,00 square meters, shall be not less than 1,00 square meters, and each of the instant commercial buildings, including 19 commercial buildings, among the instant commercial buildings, shall not be more than 3 residential buildings under Article 1-2(1)5 of the Enforcement Decree of the Building Act, and it constitutes “the main sales facility under Article 2-5 of the Building Act.”

B) Whether to require the consent of a majority of the sectional owners of the instant commercial building for the establishment of the Intervenor joining the Defendant

Article 16 (2) of the former Act provides that "When the committee for promotion of housing reconstruction intends to establish an association, the consent of the majority of sectional owners of each Dong (in the case of welfare facilities, the whole welfare facilities within the housing complex shall be regarded as one Dong) of multi-family housing in the housing complex, at least 3/4 of all sectional owners within the housing complex, and at least 3/4 of land size shall be obtained." As seen above, the defendant joining the defendant shall consider only 48 persons registered as co-owners as co-owners as co-owners in the case of the commercial building in this case, on the ground that the number of sectional owners of the commercial building in this case is not more than five, the majority consent of the co-owners of the commercial building in this case is not necessary among the requirements for consent required by Article 16 (2) of the former Act, and based on this, the defendant's establishment of the building in this case requires the consent of the majority of the co-owners of the above building in this case, including the plaintiffs and auxiliary intervenors.

Considering the following circumstances as a whole, such as the purpose and purport of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, necessity to protect property rights, and facts acknowledged prior to the relevant statutes, it is reasonable to view that the above 48 co-owners, who are co-owners of the commercial building of this case, fall under the “sectional owner” as prescribed by Article 16(2) of the former Act, and that the above 48 co-owners’ consent is necessary for the establishment of the

(1) As seen earlier, if a sectional ownership exists even before the building is registered in the registry, the sectional ownership is established even before the building has been registered in the registry, and even if the building is not a sectioned building, the sectional ownership still remains in existence. Therefore, the instant commercial building also exists after the establishment of sectional ownership by 54 units, and 48 sectional co-owners of the building have sectional ownership of a specific commercial building for the external convenience.

(2) Unlike the general co-ownership relationship in which each co-owner is unable to exercise a full ownership for all or part of the co-owner's share, and each co-owner can exclusively use and benefit from a specific sectionally owned building without any restriction by other co-owners in the sectionally owned co-ownership relationship, and can dispose of it freely, and its substance is close to sectionally owned ownership.

③ The purport of requiring the consent of sectional owners or owners of lands, etc. to implement a rearrangement project and to obtain the consent of the owners of lands, etc. is to promote the project and reflect the opinions of such interested parties by designating the parties having a direct interest in the urban environment rearrangement project as the principal agent and to reflect the opinions of such interested parties. Considering that the consent of sectional owners, which is stipulated as the requirement for establishing an association regarding the housing reconstruction project under Article 16(2) of the former Urban Improvement Act, cannot be interpreted the same as general judicial relationship, and it is reasonable to ensure that the parties having a direct interest in the exercise of ownership to the relevant real estate and the implementation of the project can reflect the opinions of the parties having a direct interest in the relevant real estate in the procedure for consent (see Supreme Court Decision 2013Du15262, Jun. 11, 2015). Furthermore, it is reasonable to interpret the provisions of Article 16(1) of the former Urban Improvement Act regarding the division of multi-family housing under Article 16(2) of the former Urban Improvement Act, regardless of the consent of Building Act.

④ In the case of the instant commercial building, 48 persons shared each commercial building, and persons having a substantial interest in each of the above co-owners are specific co-owners who actually use and make profit from each commercial building, and the remaining co-owners are the registered titleholder, and there is no particular interest in the relevant commercial building, in addition to the fact that they are the registered titleholder.

⑤ If only one representative is deemed a sectional owner or a landowner, etc. solely on the ground that ownership of the instant commercial building is registered as co-ownership, it is difficult to reflect the intent of individual sectional owners having a substantial interest in each shop building as above in determining whether to establish a cooperative. Furthermore, the co-owners of the instant commercial building are qualified for membership (Article 19(1) proviso 1 of the former Act). Unless otherwise stipulated in the articles of incorporation, the co-owners of the instant commercial building are actually obstructed the exercise of voting rights in proportion to their respective property rights regarding the decision-making of various associations in the process of the reconstruction project, and thus, it is highly likely that the legitimate protection of property rights would not be achieved. Unless otherwise stipulated by the articles of incorporation, the entire co-owners are provided with only one house (Article 48(2)6 of the former Act, Article 28(1) of the former Enforcement Decree of the Commercial Building Act, Article 28(2)1 of the former Enforcement Decree of the former Act, and Article 28(2)6 of the former Act on the Partition of the Commercial Building Act (see, 28).

(6) Furthermore, where only one of the sectional co-owners of the instant commercial building is treated as sectional owners or owners of land, etc. as above, unless all co-owners consent to the establishment of the association, or the representative elected by all co-owners consent to the establishment of the association, all co-owners cannot obtain membership. Ultimately, the entire commercial building of this case including not only those who consent to the establishment of the association but also those who consent to the establishment of the association among the sectional co-owners of this case is subject to the exercise of the right to demand sale (see Article 39 subparagraph 1 of the former Act and Supreme Court Decision 2015Du50283, Feb. 3, 2017). In fact, the Intervenor brought a lawsuit against all of the co-owners of the instant commercial building on the ground that all of the co-owners of the instant commercial building did not consent to the establishment of the association, and the representative fails to apply for sale against the intention of all the co-owners of the instant building, the object of cash settlement would be unfairly distorted, and the intent of the former Act.

7) Article 28(1)2(a) of the former Enforcement Decree of the Act provides that “where ownership or sectional ownership belongs to several co-ownerships, one representative of such several co-owners shall be calculated as the owner of a plot of land, etc.” In order to ensure the procedural convenience in the operation of the association by selecting one person who is the representative of the majority of co-owners and registering the same with the association, and to prevent the owner of land or building from exercising undue influence over the progress of the rearrangement project by changing the form of ownership to the co-ownership, and exercising excessive voting rights. In principle, the protection of property rights of the owners of land, etc. based on equity is based on the principle of equity. However, if the sectional ownership ownership relationship, such as the shopping district in this case, is formed, it is objectively independent in structure and use, and it is reasonable to view that the ownership transfer according to the share ratio corresponding to the area of each co-owned building increases, and thus, it is unreasonable to recognize the establishment of sectional ownership and the actual influence of the owners of the relevant sectional ownership in this case as well-owned ownership.

(8) On the other hand, the defendant asserts that, insofar as the procedure for conversion registration into the building register and the procedure for division registration of the registry have not been completed, the defendant did not have a duty to investigate and confirm the establishment of sectional ownership or the ownership relationship of the building in this case even if the sectional ownership relationship was formed in the commercial building in this case. However, in order to implement a reconstruction project, the defendant is obliged to establish an association after receiving all the documents on the current status of the owners of land, etc. and the requirements for consent and examining them, and it is objectively possible to understand the establishment of sectional ownership of the commercial building in this case and its ownership relationship as mentioned above. In particular, in the case of the commercial building in this case, the defendant was imposed property tax by each unit, and the defendant was received from the owners of the commercial building in this case. On November 2015, 2015, the sectional ownership right can be established regardless of the registration, as seen earlier, regardless of whether the building registered as a general building can be converted into the sectional ownership registration, and thus, the defendant cannot be seen as having no duty to ascertain the establishment of sectional ownership.

C) Determination on the Defendant’s Defendant’s assertion of correction of defects

The reasoning for this part of this court is that the part of the judgment of the court of first instance from No. 10, No. 12 to No. 14 "," was written on June 2017, 46 among the owners of the commercial buildings of this case, appointed Plaintiff 28 as their representative, and around that time, Plaintiff 28 submitted a written consent to the establishment of the partnership to the Intervenor joining the Intervenor. After that, the Intervenor 1, one of the owners of the commercial buildings of this case, consented to additionally select Plaintiff 28 as the representative, and the Nonparty, the other owner of the commercial building of this case, submitted the written consent to the establishment of the Intervenor joining the Intervenor. However, except as otherwise stated in the part corresponding to the corresponding part of the judgment of the court of first instance (No. 7 through No. 11, No. 15). Thus, this shall be cited pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2) Sub-committee

There is procedural defect in the instant disposition that approved the establishment of the Intervenor’s Intervenor without meeting the “the consent of the majority of the sectional owners” required for the establishment of the Intervenor’s Intervenor.

D. Sub-committee

Therefore, the instant disposition should be revoked as it is unlawful (not to decide on the remaining illegal grounds of the Plaintiffs and the Intervenor’s Intervenor).

4. Conclusion

The plaintiffs' claims are accepted in its reasoning, and the judgment of the court of first instance with the same conclusion is justifiable. Thus, the appeal filed by the defendant and the intervenor joining the defendant is dismissed for each reason.

[Attachment]

Judges Kim Jong-tae (Presiding Judge)

1) The defendant asserts that the above placement drawing was not made at the time of the first sale of the commercial building of this case. However, in light of the above placement drawing's names as stated in each commercial building's head office are consistent with the first buyer who was sold by Han new public by Han new public (see the copy of the copy of the evidence No. 28 of this case), Han new public official had defaulted around 1988, and the above placement drawing stated "593-024, "593-0244," "for delegation of management authority," and " Han Han new" on the right upper part of the above placement drawing, it is reasonable to view that the above placement drawing was made at the time

(2) As to the drawing attached to Gap evidence 29-1's certificate, although the plaintiff 21 did not receive relevant drawings at the time of the initial sale contract, it received them from the management office after around 2008, and attached them to the registration right. However, since around 2005, the name of the church that purchased part of the building of this case since around 2005, the name of the church that purchased some of the building of this case appeared, and the printed letter form of the above drawing is distinct from the printing form of other letters on the registration right. In light of the above, the above plaintiff 21's explanation is credibility.

3) Article 2 (Definitions) (2) The use of a building shall be classified as follows, and the detailed use of a building belonging to each use shall be prescribed by Presidential Decree:

4) The types of buildings falling under the uses provided for in the subparagraphs of Article 2 (2) of the Act shall be as specified in attached Table 1. [Attachment Table 1] 7. Sales facilities (b) Retail markets (referring to large-scale stores as defined in subparagraph 3 of Article 2 of the Distribution Industry Development Act and other similar ones, including neighborhood living facilities therein)

5) Article 47(2) of the Act on the Ownership and Management of Aggregate Buildings requires the consent of at least 4/5 of the sectional owners as to a rebuilding resolution. If a co-ownership of a general building, such as the commercial building in this case, has been registered in accordance with the Defendant and the Intervenor’s Intervenor’s assertion, if the registration appearance is emphasized and understood as simple sharing, it would result in unreasonable conclusion that a sectional owner’s concept cannot be presented even in any case of an aggregate building to which the former Act on the Maintenance and Management of Aggregate Buildings is not applicable, even if the establishment of sectional ownership is recognized, but only a simple co-ownership relationship with each sectional building is recognized as not recognizing sectional ownership. Even if the establishment of sectional ownership is recognized, co-owners should exercise their voting rights only through one person representing the entire co-owners (Article 37(2) of the Act on the Ownership and Management of Aggregate Buildings). If the representative of each sectional building is selected as a person who is not the actual owner or user, then the actual owner’s intent as a co-owner is not reflected in the rebuilding resolution.

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