Plaintiff (Attorney Song-chul et al., Counsel for the plaintiff-appellant)

Barun, Inc. and one other

March 23, 2018

1. With respect to the portion of "B" size 18.2 square meters in the ship, which connects each point to the Plaintiff, among the real estate listed in the separate sheet No. 1, 11, 12, 13, 14, 15, and 10, among the real estate listed in the separate sheet No. 1, the Defendants remove each part of the board part of "B" indicated in the separate sheet No. 2, 2.13 meters in glass door at the entrance of the entrance of the entrance of the line connecting 2, 8 in sequence 7, 10, and 2.12 meters in sequence, which connects each part of "B" indicated in the separate sheet No. 1, 11, 12, 13, 14, 15, and 10, and the part of the board of the line connected with "B" in sequence

2. The costs of lawsuit are assessed against the Defendants.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff is a co-owner of each underground floor, and the Defendant Yang Jong-sik is a lessee of the part owned by the Defendant Company, as indicated in the attached list, which is an aggregate building (hereinafter “instant building”), and the unit owner of each underground floor, and the unit owner of each underground floor, and the unit owner of the Defendant Company.

B. Annex 10, 11, 12, 13, 14, 15, and 10 (hereinafter “instant dispute part”) are included in the section for common use of the building of this case. The Defendants installed 2.13 meters in the instant dispute part of the section for common use of the building of this case, which connects 2,8 in sequence the part 10, 11, 12, 13, 14, 15, and 10 of the separate drawing indication 10 (hereinafter “instant dispute part”). The Defendants are using part of the instant dispute part as part of the instant dispute part by installing 2.13 meters in glass door at the entrance of the line connecting 2,00 in sequence 8, the part 7, and 10 of the “bb.” indicated in the drawing indication, 2.13 meters in line with “c.” indicated in the same drawing indication, 6, and 11.

[Reasons for Recognition] Facts without dispute, each entry and video of Gap's evidence (including each number), and the purport of the whole pleadings

2. Determination on the defendants' main defense

A. The assertion and judgment on the succession of the sectional owner's meeting

1) Summary of the assertion

The sectional owners of the instant building, as the sectional owners’ meeting on August 27, 1992, did not have an interest independently from the other sectional owners of the instant building in terms of structure and use. Therefore, since the sectional owners of the instant building did not have an interest in the portion of the instant building separately from the other sectional owners of the instant building, the sectional owners of the instant building changed its use to the section of exclusive ownership, and the sectional owners’ meeting was resolved to belong to the ○○○○○○○ church, the former owners of the Defendant company, which was the owner

2) Determination

The judgment of the defendants as to the above assertion is included in the propriety of the claim within the main text, so the defendants' above defense of safety is without merit.

B. The non-existence of resolution by sectional owners and determination

1) Summary of the assertion

A claim for common areas of an aggregate building shall undergo a resolution of at least 80% of the total sectional owners under the Act on the Ownership and Management of Aggregate Buildings, and the lawsuit brought by the plaintiff alone without such resolution was not satisfied the requirements for the lawsuit.

2) Determination

According to Article 16 (1) of the Aggregate Buildings Act, matters concerning management other than change of common areas of an aggregate building shall be decided by a resolution of an ordinary assembly (by a majority of the sectional owners and a majority of voting rights). Since preservation of the jointly owned property is allowed to be carried out by each co-owner, the above main safety defense of the Defendants is without merit on different premise.

3. Judgment on the merits

A. The plaintiff's assertion and judgment

1) Summary of the assertion

The defendants illegally diverted and use the dispute portion of this case, which is the common use area of the building of this case, and thus, the plaintiff is entitled to preserve the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Aggregate Buildings Act"), and the plaintiff seeks removal of the above glass door, etc. and delivery of such part of possession.

2) Determination

A) In a case where a sectional owner of an aggregate building under the Act on the Ownership and Management of Aggregate Buildings shares part of a condominium building, each sectional owner cannot exclusively occupy and use the section for common use, barring special circumstances such as the existence of separate regulations. Therefore, a sectional owner of an aggregate building may seek the delivery of the section for common use as an act of preservation against other sectional owners who exclusively occupy the section for common use of an aggregate building (see Supreme Court Decision 2012Da12169, Jun. 27, 2013, etc.).

B) The dispute part of this case is the common part of the building of this case, which is the part belonging to the co-ownership of the sectional owners of the building of this case including the plaintiff, and the defendants installed glass door, etc. and exclusively possess and use the dispute part of this case, as seen earlier. Thus, the plaintiff, who is the sectional owner of the building of this case, can request the defendants to exclude the exclusive possession and use of the dispute part of this case from the common part of the building of this case, unless there are special circumstances.

B. The defendants' assertion and judgment

1) Summary of the assertion

The sectional owners of the building of this case, as the sectional owners' meeting on August 27, 1992, because the dispute portion of this case, etc., as the sectional owners' meeting of this case, is not independent of the other sectional owners of the building of this case in the structure and use of the building of this case, and there was a resolution of sectional owners' meeting, which shall belong to the ○○○○○○ church, the previous owners of the building of this case, after changing its use into the section of exclusive ownership, after changing its use into the section of exclusive ownership.

2) Determination

The Defendants’ aforementioned assertion is premised on the premise that the dispute part of this case can be an object of sectional ownership independently from other parts of the building of this case.

Whether a part of an aggregate building is a section for exclusive use or a section for common use, in principle, shall be determined at the time when the entire building is completed and registered as a section in the building ledger on the building concerned. It may not affect whether a section for common use is a section for exclusive use or a section for common use. However, the section for common use may be changed to a section for exclusive use by meeting the requirements under Article 15 of the Aggregate Buildings Act, but for this purpose, the section for common use is required first to be independent of another section for exclusive use or use. Since the structural independence for establishing a section for common use is necessary to clarify the scope of physical control over the object which is the object of ownership, it cannot be said that the section for exclusive use is structural independence if it is impossible to determine the scope of the object of sectional ownership by structural division. In addition, the independence in use for establishing a section for exclusive use means that the section for exclusive use, such as part of the building itself and economic utility that can be independently used and traded, should not be established at will (see, e.g., Supreme Court Decision 2009Da16597, May 20198).

The evidence submitted by the defendants alone is insufficient to recognize that the part of the dispute in this case satisfies the physical requirements adequate to be the object of sectional ownership, and there is no other evidence to acknowledge it. Thus, the above assertion by the defendants is without merit.

C. Sub-decision

Therefore, the Defendants have the duty to remove the glass door, etc. installed in the dispute part of this case and deliver the occupied part to the Plaintiff seeking the exclusion of exclusive use by the act of preservation of the jointly owned property.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons, and it is so decided as per Disposition.

(attached Form omitted)

Judges Kim Jong-tae