2015Da1819 Management Expenses

A Managing Body

United Nations Co., Ltd.

Seoul High Court Decision 2014Na10092 Decided December 3, 2014

August 30, 2016

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court is justifiable to have determined that the Defendant did not have an obligation to pay late payment fees for unpaid management expenses to the Plaintiff on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal

2. As to the Defendant’s ground of appeal

A. Article 28-6 (1) and (3) of the former Industrial Cluster Development and Factory Establishment Act (amended by Act No. 9426 of Feb. 6, 2009; hereinafter referred to as the "Industrial Cluster Act") provides that where the relationship of sectional ownership is established with respect to an apartment-type factory under the Act on the Ownership and Management of Aggregate Buildings, the scope of business of a person who manages an apartment-type factory under Article 23 (1) of the same Act (hereinafter referred to as the "manager") shall be determined by Ordinance of the Ministry of Knowledge Economy (Article 23 (1) of the same Act. Article 26-2 (4) and (5) of the former Enforcement Rule of the Industrial Cluster Development and Factory Establishment Act (amended by Ordinance of the Ministry of Knowledge Economy No. 91 of Aug. 7, 2009) provides that the joint ownership portion of the apartment-type factory, the maintenance and repair expenses of the apartment-type factory and support facilities (excluding those sold to the general public), the scope of business of the manager or manager of the apartment-type factory, etc.

In addition, the management body under Article 23(1) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter referred to as the " Aggregate Buildings Act") is not an organization established only through an organizational act, but an organization formed by sectional ownership as a matter of course in the event that there is a building established by sectional ownership, such a management body is established by all sectional owners. Thus, if the sale of an aggregate building commences and the necessity of joint management arises due to the commencement of occupancy, a management body is established by which all sectional owners, including those of the sectional owners of the unsold section of exclusive ownership at the time of such sale (see, e.g., Supreme Court Decision 2003Da45496, Nov. 10, 2005). Meanwhile, Article 41(1) of the Aggregate Buildings Act provides that "where there is an agreement in writing with at least four fifthss of sectional owners and voting rights, a resolution by the management body meeting cannot be adopted in accordance with Article 2416(24).

B. According to the reasoning of the lower judgment and the first instance judgment partially admitted by the lower court and the evidence duly admitted, the following facts are revealed.

(1) The defendant was an executor who newly constructed and sold the apartment-type factory of this case (hereinafter "the apartment-type factory of this case"), and entered into a real estate security trust contract for the building of this case with the joint defendant Korea Assets Trust Co., Ltd. of the court below around March 2009.

(2) At the time of selling the instant building, the Defendant entered into a management contract with the Defendant or the Defendant at the time of moving-in, and paid management expenses to the management office, and paid them to the buyer from the date of payment of management expenses (Article 10(4)); “The Defendant becomes the management office, such as collecting management expenses and selecting service companies for the management of the instant building for two years from the date of approval for use”; and “the buyer may have the organization (self-government organization) necessary for the management of the instant building by three months prior to the expiration of the management period (Article 11(2)), organized with the other party to the sales contract, and signed a sales contract with the sectional owner pursuant to the sales contract stating “The buyer may receive the transfer amount (Article 11(2)).”

(3) As the Defendant entrusted management of the instant building for two years under the above sales contract, the Defendant entered into the instant building management service contract with the Es Integrated Management Co., Ltd. (hereinafter “Es Integrated Management”) by setting the contract period from March 15, 2009 to March 14, 201. Accordingly, Es Integrated Management began to manage the instant building from March 15, 2009, where the buyer moved into the occupancy of the buyer.

(4) The buyer entered the instant building and entered into the instant building management contract with the content that he/she delegated the right to the joint management of the instant building to the AS General Management according to the said sales contract while moving into the instant building.

(5) On May 18, 2009, E.S. General Management borrowed KRW 68,156,690 from the Defendant for electric utility charges on April 19, 2009. On March 19, 2010, the Defendant received KRW 193,067,000 from the Defendant and paid KRW 50,124,898 among them as insurance premium, and KRW 2,417,930 as gas charges, and KRW 136,054,940 as the electric utility charges on January 2010.

(6) On September 15, 2010, the Plaintiff enacted the management rules by holding an inaugural general meeting. Examining these facts in light of the relevant Acts and subordinate statutes and legal principles as seen earlier, it can be deemed that the Defendant, the owner of the instant building, the seller of the building, and the buyer, agreed in writing on the appointment of a manager after the establishment of the management body under the premise of acquiring the sectional ownership of the buyers through individual sales contract, and that the buyer, at the same time, agreed on mutual acceptance of such individual written agreement. Furthermore, it is reasonable to deem that the Defendant, appointed as the manager by such written resolution, agreed explicitly on the ratification of the instant building management services agreement concluded between the Defendant’s performance assistant or the performance agent’s position and the performance agent’s duty to manage the instant building under Article 28 of the Civil Act for the purpose of the management entrustment of the instant building. Since the Plaintiff established the building of this case without any separate organizational act on March 15, 201 and maintained its identity, the Plaintiff provided the Defendant’s duty to manage the building as the principal and the manager’s status under Article 16 of the Civil Act.

Nevertheless, the lower court rejected a offset defense against the Defendant’s unpaid management expenses on the ground that it is merely for the Defendant, a delegation with interest of the managing body, and it cannot be deemed that it is for the Plaintiff not yet organized, even though AS General Management spent expenses incurred in managing the instant building as a cost necessary for the management services. In so doing, the lower court erred by misapprehending the legal doctrine on written resolution in lieu of the resolution of the management assembly, necessary reimbursement claims by the mandatory manager, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The Defendant’s ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, the part against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Park Byung-hee

Chief Justice Park Jong-young

Justices Kim Jae-han