○○○ shopping mall Co., Ltd. (Attorney Go-sung, Counsel for the plaintiff-appellant)

Defendant

May 24, 2018

Seoul Central District Court Decision 2017Gaso6119 Decided November 10, 2017

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

[Disposition] The defendant shall pay to the plaintiff 2,11,150 won with 15% interest per annum from the day after service of the original copy of the payment order of this case to the day of complete payment.

【Purpose of Appeal】 Claim 1 and 2

1. Facts of recognition;

○○○○○○ shopping mall (hereinafter “instant shopping mall”) was established on May 12, 2009 for the purpose of managing and operating the shopping mall located in Jung-gu, Seoul and 7 underground and 16 above ground.

In accordance with the Distribution Industry Development Act, the Plaintiff filed an application for the registration of the establishment of a superstore with respect to the shopping mall in this case and received a superstore registration certificate from the head of the Jung-gu Seoul Metropolitan Government, and on September 4, 2013, upon receipt of the report from the head of the Jung-gu, Seoul Metropolitan Government, the Plaintiff is in charge of imposing and collecting management fees of the shopping mall in this case and claiming management fees

○ The Defendant is a sectional owner of the seventh floor △△△△△△△△△ (hereinafter “instant shopping mall”) of the shopping mall.

○ The shopping mall management body of the instant case continued to operate the shopping mall since the opening of the shopping mall was considerably low, and thus, it is impossible to operate the shopping mall normally. In order to revitalize the shopping mall of the instant case, the organization entry of the 4,6, and 7th class of the shopping mall of the instant case was promoted, and the consent was submitted from the sectional owners, including the Defendant, to promote the said group entry.

In the process of promoting the foregoing group entry, the shopping mall management body of this case completed the relocation of the lessee located in the fourth, six, and seven stories of the shopping mall of this case. From March 2010, the management body of the shopping mall of this case took measures such as cutting off, cutting off, and suspending the operation of escalators and elevators with respect to each of the above floors.

○ The shopping mall management body of this case promoted group entry points several times thereafter, but eventually, it did not have been sexually dead.

○ The Plaintiff continued to close the shopping mall 4, 6, and 7 of this case until June 2017. Accordingly, the Defendant failed to use and profit from the instant store from January 2014 to May 2016, for which the Plaintiff sought management expenses (hereinafter “instant period”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 29 through 32 (including various numbers for which there are various numbers), the purport of the whole pleadings

2. The parties' assertion

○ Plaintiff’s assertion

The Plaintiff, as a superstore manager of the shopping mall in this case established pursuant to the Distribution Industry Development Act, is entitled to impose and collect management expenses from the Defendant, who is a sectional owner, on the premise that he/she is entitled to impose and collect management expenses. During the period of this case regarding the shopping mall in this case, the Plaintiff sought payment of management expenses and late payment damages for the common use area including 2,11

○ Defendant’s argument

On the other hand, the defendant is not able to respond to the plaintiff's claim because there was an illegal interference with the plaintiff's use, and there is no clear ground for calculating the amount of management fee for common areas.

3. Determination

If a sectional owner of a building could not use or gain profit from the building due to unlawful obstruction of use, such as measures to cut electricity and water and suspend the operation of elevators taken by the managing body, such as the management body of an aggregate building, the sectional owner does not bear the obligation of management expenses incurred during the period (see Supreme Court Decision 2004Da3598, 3604, Jun. 29, 2006, etc.).

In light of the above legal principles, even if the shopping mall management body of this case did not adopt a separate management body resolution at the time of taking measures to close the shopping mall of this case including the store of this case around March 2010, the following circumstances acknowledged by considering the overall purport of the pleading. ① Even if the shopping mall management body of this case did not adopt a separate management body resolution at the time of taking measures to close the shopping mall of this case, such as the suspension of operation with Esplate, etc. ② The defendant prepared a written consent on the point of organization entry promoted by the management body of this case on July 22, 2009 (Evidence No. 34), but the specific contents were merely delegated the authority to negotiate the lease contract at the time and conclude the contract and to use the 7th-story share, and there was no evidence to acknowledge the defendant's consent to the above measures to close the sales mall of this case including the above closure of the office of this case. ④ Even if the plaintiff did not have agreed to the above measures to close the above 7th unit, the defendant did not appear to have agreed with the above management body of this case.

4. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is unfair with different conclusions, and thus, it is revoked and dismissed.

Judges Kim Jong-sung (Presiding Justice)