[1] Whether the outer wall of an aggregate building constitutes a common part of a building (affirmative)

[2] Whether a management body under Article 23 of the Act on the Ownership and Management of Aggregate Buildings is an organization established only through any organizational action (negative)

[3] Whether a sectional owner of an aggregate building may independently file a claim for exclusion of disturbance based on his/her share in the act of preserving common areas (affirmative), and whether a co-owner's above act of preserving the common areas can be exercised regardless of whether the manager is appointed (affirmative)

[4] Requirements for exercising rights to constitute abuse of rights

[5] In a case where Gap installed a signboard on the outside of the outer wall of the first floor by leasing a part of the first floor of a building, the case affirming the judgment below which held that since the outer wall of the first floor of a building is necessary to maintain the safety and exterior of the building, which is provided to all sectional owners, the outside of the outer wall of the first floor constitutes a common part of the building, and that the act of installing a signboard at that place constitutes an act contrary to the common interests of the sectional owners under Article 5(1) of the Act on the Ownership and Management of Aggregate Buildings, and that Eul, a sectional owner, as co-owner, can seek removal of the signboard independently against the co-owner's common part

[1] Article 2 of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 23 of the Act on the Ownership and Management of Aggregate Buildings / [3] Articles 5 (1) and 16 (1) of the Act on the Ownership and Management of Aggregate Buildings / [4] Article 2 (2) of the Civil Act / [5] Articles 5 (1), 16 (1), and 23 of the Act on the Ownership and Management of Aggregate Buildings, Article 2 (2) of the Civil Act

[1] Supreme Court Decision 92Da3272 delivered on June 8, 1993 (Gong1993Ha, 1997), Supreme Court Decision 94Da50380 delivered on September 10, 1996 (Gong1996Ha, 2989) / [2] Supreme Court Decision 94Da49687, 49694 (merged) delivered on March 10, 1995 (Gong1995Sang, 1590) / [3] Supreme Court Decision 86Da72, 86Da396 delivered on August 18, 198 (Gong1987Ha, 1450), Supreme Court Decision 98Da61746 delivered on May 11, 199 (Gong199, 209) / [3] Supreme Court Decision 200Da319490 delivered on May 29, 2005

Plaintiff

Defendant (Law Firm Tae, Attorneys Choi So-young et al., Counsel for defendant-appellant)

Seoul High Court Decision 2010Na42640 decided January 13, 2011

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Props, roof, outer walls, basic structures, etc. necessary for maintaining the safety and appearance of a building in an aggregate building are structural parts provided for the common use of all or some of sectional owners, not subject to sectional ownership. Whether the outer wall constituting the framework of the building is provided for the public use of all or some of sectional owners should be determined by whether it is necessary for maintaining the safety and appearance of the whole building, and the outer wall is a common area that is combined with the outer wall of the outer wall (see Supreme Court Decisions 92Da3272 delivered on June 8, 1993; 94Da50380 delivered on September 10, 1996).

According to the reasoning of the judgment below, the court below determined that the outer wall of the first floor of the building of this case, where the signboard of this case was installed, is necessary to maintain the safety and exterior of the building of this case, and is provided for the public use by all sectional owners, on the ground that the outer wall of the first floor of this case, outside of the outer wall of the building of this case, falls under the common use area of the building of this case.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error of law by misunderstanding legal principles as to common areas of an aggregate building

2. Regarding ground of appeal No. 2

Article 23 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Aggregate Buildings Act”) provides that “If a sectional ownership relationship with respect to a building is established, all sectional owners shall be comprised of the building and a management body established to carry out the business of managing the site and attached facilities.” Therefore, a management body shall be an organization naturally formed with all sectional owners if a building is established, not by any organizational action, but by a sectional ownership relationship with respect to the building (see Supreme Court Decision 94Da49687, 49694, Mar. 10, 1995, etc.). Meanwhile, Article 24(1) of the Aggregate Buildings Act provides that a management body shall appoint a manager if the sectional owners are ten or more persons, and a manager shall be appointed or dismissed by a resolution of the management body, and Article 25(1)1 provides that a management body shall have the authority and duties to preserve and alter common areas.

According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the defendant has the right to use the outer wall of the first floor of this case on the ground that the defendant was granted the right to use the outer wall of this case from the manager appointed by the resolution of the management body meeting with all sectional owners, who was authorized to preserve, manage, and alter common areas as members of the sectional owners, because the defendant set up a signboard on the outside of the outer wall of the first floor of this case and the other sectional owners are unable to use the outer wall of this case, and that such act constitutes an act of managing a condominium, and that the defendant did not have any objection from the other sectional owners except the plaintiff from the time the defendant set up the signboard of this case. It is hard to see that the sectional owners have consented to the installation of the defendant's signboard, and that the defendant was entitled to use the outer wall of this case as members of the sectional owners.

In light of the relevant statutes and the above legal principles, the above determination by the court below is just and acceptable, and there is no error of law by misapprehending the legal principles as to the legal relationship of sharing, as alleged in the grounds

3. As to the third ground for appeal

Article 5(1) of the Aggregate Buildings Act provides that "the sectional owner shall not engage in any act detrimental to the preservation of a building or any other act contrary to the common interests of the sectional owner with respect to the management and use of a building." In addition, Article 16(1) of the Aggregate Buildings Act provides that matters concerning the management of common areas shall be determined by a resolution at a general meeting and the proviso of Article 16(1) provides that "if so, each co-owner may engage in any act of preservation." Article 16(1) of the Aggregate Buildings Act provides that "The act of preservation for the maintenance of the phenomenon of common areas of an aggregate building may be performed independently by the sectional owner, who is the co-owner, by distinguishing from the act of management. The purport of the act of preservation is to distinguish not only the act of preservation, such as ordinary co-ownership, but also the right of sectional owner, which is the co-owner, including the right to claim the exclusion of interference based on the right of ownership, may be exercised regardless of whether the manager is appointed (see, e.g., Supreme Court Decisions 86Da1668.

According to the reasoning of the judgment below, the court below determined that the defendant's exclusive possession and use of a signboard on the outside side of the outer wall of the first floor of the building in this case, which is the common area, constitutes an act against the common interests of the sectional owners under Article 5 (1) of the Aggregate Buildings Act, and that the plaintiff as a sectional owner, as a co-ownership holder, can independently seek removal of the signboard in this case against the defendant

In light of the relevant statutes and the above legal principles, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the act of preserving the jointly owned property as alleged in the

4. As to the fourth ground for appeal

If the exercise of a right can be deemed an abuse of a right, the objective of the exercise of the right is to inflict pain on the other party and to inflict losses on the other party, and there should be no profits on the other party. In an objective view, the exercise of the right should be deemed to be in violation of social order. Barring such a case, even if the loss of the other party is significantly high compared to the profits that the exercise of the right has gained by the exercise of the right, the abuse of the right cannot be deemed an abuse of the right solely on the ground that the loss of the other party is significantly high (see Supreme Court Decisions 2009Da1092, May 14, 2009; 2008Da73809, Feb. 25, 2010).

According to the reasoning of the judgment below, the court below rejected the defendant's assertion of abuse of rights on the ground that, considering that the outer wall of the first floor of the building of this case is an important part necessary for the maintenance and management of the entire building of this case and that the defendant's considerable expenses are not required to remove the signboard of this case, the circumstance alleged by the defendant alone makes a claim for removal of the signboard of this case to inflict pain and damage on the defendant, and it is difficult to conclude that the claim constitutes a case where there is no benefit to the owner of the building of this case including the plaintiff, and there is no other evidence to support

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to prohibition of abuse of rights as alleged in the grounds of appeal.

5. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)