[1] The meaning of the act of preserving the article jointly owned and the purport of the proviso of Article 265 of the Civil Code that each co-owner can make the act of preserving the article independently

[2] Whether the management work of the common areas and the site for an aggregate building is basically representing the management body comprised of sectional owners and the manager thereof (affirmative) / The purport of Article 16(1) of the Act on the Ownership and Management of Aggregate Buildings is to stipulate that the exercise of rights based on the share ownership against the common areas and the site is against the interests of other sectional owners, whether the exercise of rights should be deemed an act of management that requires the resolution of the management body meeting, not an act of preservation individually permissible for each sectional owner (affirmative)

[3] In a case where Gap corporation, an urban gas business entity, installed gas pressure facilities on the site of apartment with approval for free use from the implementer at the time of constructing apartment, and thereafter Eul corporation, which acquired Gap corporation, supplied urban gas to the above apartment and its neighboring areas through the above facilities, and Byung, a sectional owner of the above apartment, filed a lawsuit against Eul corporation seeking removal of the above facilities and delivery of the site, and did not go through a resolution of the management body meeting, the case holding that Byung's claim is not an act for the management of the site of apartment, but an act for the management of the site of apartment, and it cannot be permitted without going through a resolution of the management body meeting of apartment buildings pursuant to the main sentence of Article 1

[1] Article 265 of the Civil Act / [2] Article 265 of the Civil Act, Articles 5(1), 16(1), 19, 23, 24, 25(1), and 43(1) and (2) of the Act on the Ownership and Management of Aggregate Buildings / [3] Article 265 of the Civil Act, Articles 5(1), 16(1), 19, 23, 24, 25(1), 43(1) and (2) of the Act on the Ownership and Management of Aggregate Buildings

[1] [2] Supreme Court Decision 2015Da208252 Decided September 26, 2019 (Gong2019Ha, 2013) / [1] Supreme Court Decision 93Da54736 Decided April 7, 1995 (Gong195Sang, 1810)

Plaintiff (Law Firm Dong-ho, Attorneys Lee Ho-ho et al., Counsel for the plaintiff-appellant)

Seobol Urban Gas Co., Ltd. (Attorney Jung-Gyeong et al., Counsel for defendant-appellant)

Daegu District Court Decision 2014Na30544 decided May 22, 2015

The judgment below is reversed, and the case is remanded to the Daegu District Court.

The grounds of appeal are examined.

1. Preservation of the article jointly owned is a factual and legal act conducted to prevent the destruction or damage of the article jointly owned and to maintain its phenomenon. The purport of the proviso of Article 265 of the Civil Act that the act of preservation of the article jointly owned is that each co-owner can alone do so, because there are many cases where the act of preservation is urgently needed and it is common benefit to the other co-owners (see Supreme Court Decision 93Da54736, Apr. 7, 1995, etc.).

The Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act”) has several special provisions on the ownership under the Civil Act to facilitate and properly maintain and manage common areas and sites essential for the existence of an aggregate building, and to coordinate mutual interests among sectional owners surrounding communal living in an aggregate building. If a sectional ownership relationship is established, the management body of an aggregate building, the purpose of which is to manage the building, site, etc. with all sectional owners as its members (Article 23). If there are at least ten sectional owners, the management body of an aggregate building, the purpose of which is to represent the management body and to manage the building, site, etc. shall be established (Article 24), and the preservation, management, and alteration of common areas shall be subject to the management body’s authority and duties (Article 25(1)). A sectional owner shall not engage in any act contrary to the common interests of the management body (Article 5(1)). If a sectional owner performs such act, the manager may file a request for suspension, etc. of such act, and the filing of a lawsuit therefor shall undergo a resolution at the management body’s meeting (Article 43(2).

Article 16(1) of the Act on the Ownership and Management of Aggregate Buildings provides that matters concerning the management of common areas and sites shall be determined by a resolution of the management body's ordinary assembly, and Article 19 of the same Act provides that "if a sectional owner exercises his/her right for common areas and site, it may be done by each co-owner, and Article 16(1) of the same Act applies mutatis mutandis to the site and facilities attached thereto, other than the common areas, owned by the co-owner. The purport of Article 16(1) of the Act on the Ownership and Management of Aggregate Buildings is to ensure that the sectional owner, who is the co-owner, can exercise his/her right solely by distinguishing from the management act. In full view of the purport of the proviso of Article 265 of the Civil Act, the legislative purport of the Act on the Ownership and Management of Aggregate Buildings and the relevant provisions, if the sectional owner exercises his/her right for common areas and site, it cannot be deemed that each co-owner's individual preservation act is a management act that must be resolved by the management body

2. A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

1) The Plaintiff, as a sectional owner of the instant apartment, shares the site of the apartment in proportion to his share of the site.

2) On October 8, 1996, New Urban Gas Co., Ltd. (hereinafter “New Urban Gas”) installed gas pressure facilities (hereinafter “instant constant air pressure facilities”) on the ground of 26.22 square meters of the apartment site with the consent of free use from the Korea National Housing Corporation, which newly constructed the instant apartment site, and the Defendant acquired new urban gas around August 200 and supplies urban gas to the instant apartment complex from that time. The instant constant air pressure facilities are essential facilities for converting high pressure urban gas into low pressure household use, and supplying urban gas to the instant apartment complex and its neighboring areas.

3) The Plaintiff did not undergo the resolution of the instant apartment management body while filing the instant lawsuit seeking to remove the instant facilities and transfer the site.

B. We examine the above facts in light of the legal principles as seen earlier. Considering that the instant facilities are essential facilities for the instant apartment owners to supply urban gas, it may hinder the supply of urban gas in the event of removal, and that it is difficult to maintain a smooth residential life without the supply of urban gas, the Plaintiff’s claim for removal of the instant facilities and delivery of the site may be contrary to the interests of other sectional owners of the instant apartment. In addition, new urban gas installed the instant facilities with the consent of use in the construction of the instant apartment, and the instant facilities had existed in the site of the instant apartment. Accordingly, it is difficult to view that seeking removal is an act to maintain the present phenomenon of the instant apartment site.

Therefore, the claim of this case cannot be deemed an act of preserving the jointly owned property, and it is an act for managing the site of this case, which is subject to the resolution of the management body of the apartment of this case pursuant to the main sentence of Article 16 (1) of the Aggregate Buildings Act. Since the plaintiff did not undergo such a resolution, the plaintiff's claim cannot be allowed

C. Nevertheless, the lower court determined that the Plaintiff, a co-owner of the apartment site of this case, could seek removal of the facilities and delivery of the site of this case against the Defendant as an act of preserving the jointly-owned property. In so determining, the lower court erred by misapprehending the legal doctrine on the preservation of the jointly-owned property and the management act under the Aggregate Buildings Act, thereby adversely affecting the conclusion of the judgment. The

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)