Razer Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Lee In-bok et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Gyeong-sik, Counsel for the defendant-appellant)

Seoul Southern District Court Order 2006Kahap2249 dated January 4, 2007

The decision of the first instance shall be revoked.

2. Between the creditor and the management body of the Kukdong Office Office Office Office building, the debtor 1 shall not perform the duties as the manager of the above management body, and the debtor 2 shall not perform the duties as the manager of the above management body, until the judgment of nullification of the resolution of nullification of the settlement of the management body on July 26, 2006 becomes final and conclusive.

3. The obligor shall bear the total expenses.

The same shall apply to the order.

1. Basic facts

According to the records, the following facts can be acknowledged:

A. The Kudodong-dong 14-8, 14-9, Kudo-dong, Yeongdeungpo-gu, Seoul (hereinafter “instant building”) consists of 86 sectional ownership buildings, and the total area of the section for exclusive use is 19,852.6 square meters.

B. A creditor was elected at the meeting of the managing body of the instant building held on August 25, 2005 with Nonparty 1 and 2 as joint managers of the said building, and Nonparty 2 resigned on June 30, 2006.

C. At the meeting of the temporary management body of the building of this case held on July 26, 2006, a resolution was made to the effect that “Defendant 1 is the representative of the manager, Nonparty 1 is the administrator, and Defendant 2 is appointed as the manager” (hereinafter “first resolution”). At that time, the sectional owner of the building of this case at that time stated “the sectional owner of the building of this case as of July 26, 2006” in the annexed Table “the sectional owner of the sectional ownership as of July 26, 2006,” and the person who consented to the first resolution among the above sectional owners is the same as “the list of supporting persons appointed by the manager of the management body of July 26, 2006.”

D. At the meeting of the temporary management body of the building of this case held on September 9, 2006, the resolution was adopted with the consent of 33 of the sectional owners, such as the ratification of the first resolution and the dismissal of the administrator against the creditor (hereinafter “the second resolution”). At that time, the sectional owners of the building of this case at that time are the same as the entry of the sectional owners as in the separate ownership list as in September 19, 2006, and those who agreed with the second resolution among the above sectional owners are the same as the entry of the list of the supporting creditors of the management body meeting of September 19, 2006.

E. However, at the time of the first resolution and the second resolution, the persons sharing the sectionally owned building in the instant building did not designate one co-owner to exercise voting rights pursuant to Article 37(2) of the Act on Ownership and Management of Condominium Buildings (hereinafter “Aggregate Buildings Act”), and exercised voting rights according to the area of the section of exclusive ownership corresponding to the co-owner’s co-ownership.

F. Provisions of the Aggregate Buildings Act

Article 12 (Share of Co-owner)

(1) Each co-owner's share shall be based on the ratio of the area of his/her section of exclusive ownership.

(2) In the case of paragraph (1), if there exists an area for a section for partial common use, the area for such section for common use shall be allocated according to the ratio of the area of the section for common use owned by the sectional owners, and it shall be included in

Article 24 (Appointment, etc. of Custodians)

(1) A manager shall be appointed if at least ten sectional owners exist.

(2) The manager shall be appointed or dismissed by the resolution of managing body's meetings.

(3) If the manager has committed any unlawful act or has given reason to make it inappropriate to perform his/her duties, any sectional owner may request the court to dismiss him/her.

Article 28 (Regulations)

(1) Matters between sectional owners regarding the management or use of building, site, and annex facilities which are not provided for in this Act, may be determined by regulations.

(2) Matters regarding the section for partial common use, which is not related to the interests of all sectional owners, may be determined by the regulations for sectional owners sharing this section, unless otherwise determined by all sectional owners.

(3) In cases falling under paragraphs (1) and (2), any right of a person other than sectional owners shall not be prejudiced thereby.

Article 37 (Voting Rights)

(1) Except as otherwise provided for in the regulations, each sectional owner shall be entitled to the ratio of shares provided for in Article 12.

(2) If the section for exclusive use belongs to two or more persons, co-owners shall designate one person to exercise voting rights at the managing body's meeting.

Article 38 (Method of Resolution)

(1) The proceedings of managing body's meetings shall be decided by each majority of sectional owners and voting rights, unless otherwise provided for in this Act or regulations.

(2) Voting rights may be exercised by documents or agents.

Article 6 (Relation with Housing Act)

The special provisions of the Housing Act concerning methods and standards for managing collective housing shall be effective unless they conflict with this Act and thus infringe on the basic rights of sectional owners: Provided, That the liability for warranty of collective housing and repair of defects shall be governed by the provisions of Article 46 of the Housing Act.

2. Judgment on the parties' arguments

A. The parties' assertion

(1) Creditor's assertion

At the time of the first resolution and the second resolution, in the case where the building in this case is owned by several persons, one co-owner is not designated to exercise voting rights in accordance with Article 37(2) of the Aggregate Buildings Act, so the exercise of voting rights by co-owners is null and void. If the above-mentioned co-owners excludes voting rights, each of the above resolutions is null and void because it does not meet the requirements of Article 38(1) of the Aggregate Buildings Act (a majority of sectional owners and voting rights), but the debtor currently performs the duties of the manager and the manager of the building in this case. Thus, the creditor is seeking provisional disposition as described in the purport of the application in order to prevent property damage caused by the debtor's illegal execution of duties as co-owner of the building

(2) The debtor's assertion

Since Article 37 (2) of the Aggregate Buildings Act does not constitute a mandatory provision, in case where one co-owner does not designate one co-owner who exercises his voting right, the voting right according to the area of the section of exclusive ownership corresponding to co-owner's co-ownership is recognized. According to this, the first and second resolutions meet all the requirements of Article 38 (1) of the Aggregate Buildings Act.

B. Determination

The issue of this case is whether the exercise of voting rights by individual co-owners is valid if co-owners do not designate a person to exercise voting rights, although Article 37 (2) of the Act on the Ownership and Management of Aggregate Buildings provides that if co-owners do not designate a person to exercise voting rights, the provisions of Article 37 (2) and relevant provisions of the Act on the Ownership and Management of Aggregate Buildings, (2) the Act on the Ownership and Management of Aggregate Buildings is modified or revised substantially to regulate the legal relations among co-owners collectively and uniformly, (3) according to Article 28 (1) of the Act on the Ownership and Management of Aggregate Buildings and Article 6 of the Addenda, most of the provisions of the Act on the Ownership and Management of Aggregate Buildings are interpreted as mandatory provisions, and Article 37 (2) of the Act on the Ownership and Management of Aggregate Buildings and Article 37 (2) of the Addenda of the Act on the Ownership and Management of Aggregate Buildings are interpreted as discretionary provisions, the above provisions are inconsistent with the purport of the Act on the Ownership and Management of Aggregate Buildings.

According to the first resolution and the second resolution, the area of the section for exclusive use corresponding to co-owners' co-ownership in the area of the section for exclusive use, excluding the area of the section for exclusive use corresponding to co-ownership of the co-owners. Since the aggregate of the area of the section for exclusive use by the sectional owners (the single owner) who approved the second resolution is 6,93,38 square meters, and the aggregate of the area of the section for exclusive use by the sectional owners (the single owner) who approved the second resolution is 7,006.67 square meters, all of the first resolution and the second resolution are null and void because they do not meet the majority of the voting rights stipulated in Article 38(1) of the Aggregate Buildings Act, and the debtor was not legally elected by the manager and the manager of the building of this case. Accordingly, the application for provisional disposition in this case is proved about the right to be compensated, and as such, in light of the fact that the debtor performed his duties for a long time without being the legitimate manager and manager of the building of this case,

3. Conclusion

Therefore, the application for provisional disposition of this case is justified because there is a vindication of the right to be preserved and the necessity of preservation, and the decision of the first instance court which has different conclusions is unfair, so it is revoked by accepting the creditor's appeal, and it is decided as per Disposition by Defendant 1's order prohibiting the debtor as the manager of the building of this case from performing their respective duties as the manager of the building of this case as the manager of the building of this case.

[Attachment List omitted]

Judges Rowing-wing (Presiding Judge) Human Rights