[1] Whether a rental business operator shall transfer the amount calculated according to the standard under the Rental Housing Act and subordinate statutes, regardless of whether the special repair reserve has been actually accumulated (affirmative)

[2] In cases where a part or whole of a rental house is converted into sale, whether a rental business operator is obligated to collect and accumulate special repair reserve funds from a selling household as a management entity under the former Housing Construction Promotion Act (affirmative); and in such cases, whether a rental business operator is obligated to hand over the special repair reserve funds even if the rental business operator did not actually accumulate the special repair reserve funds (negative)

[1] Article 17-2 (see current Article 31) of the former Rental Housing Act (amended by Act No. 6167 of Jan. 12, 2000) / [2] Article 17-2 (see current Article 31) of the former Rental Housing Act (amended by Act No. 6167 of Jan. 12, 2000) and Article 38-2 (see current Article 51 of the Housing Act) of the former Housing Construction Promotion Act (amended by Act No. 6916 of May 29, 2003)

[1] [2] Supreme Court Decision 2012Da1573 Decided March 28, 2013

[Defendant-Appellee] The council of occupants' representatives of the New Jeju Industrial Complex

Korea Land and Housing Corporation (Law Firm Barun, Attorneys Park Ho-ho, Counsel for defendant-appellant)

Seoul High Court Decision 2012Na92977 decided October 23, 2013

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The court below held that Article 2 of the Addenda of the former Rental Housing Act (wholly amended by Act No. 5228 of Dec. 30, 1996) provides that "the amended provisions of Article 17-2 shall apply from the rental house constructed after obtaining approval of a project plan under Article 33 (1) of the former Housing Construction Promotion Act for the first time after this Act enters into force, and Article 33 (1) of the former Housing Construction Promotion Act (wholly amended by Act No. 6916 of May 29, 2003) provides that the approval of a project plan, approval of a change of a project plan, or its substance is not much different, the "approval of a project plan" under Article 2 of Addenda of the former Rental Housing Act shall be included in the approval of a project plan under the main sentence of Article 33 (1) of the former Housing Construction Promotion Act and the approval of a change of a project plan after the commencement of the former Rental Housing Act, and thus, the defendant determined that the aforementioned provisions of Article 33-18 of the former Rental Housing Act were applied to the construction project plan.

In light of relevant provisions and records, the judgment of the court below is just and acceptable, and there is no error of law by misapprehending the legal principles as to Article 2 of the Addenda of the former Rental Housing Act as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

Special repair reserve funds to be accumulated by a rental business operator under the Rental Housing Act shall be transferred to the council of occupants' representatives after conversion of sale, regardless of whether the rental business operator actually accumulated as a business operator (see Supreme Court Decision 2012Da1573, Mar. 28, 2013).

The court below determined that even if the defendant did not accumulate the special repair reserve, it cannot be deemed that the performance of the duty to transfer the special repair reserve is impossible due to such accumulation. This is just in accordance with the legal principles as seen earlier, and there is no error of law by misapprehending the legal principles as to the duty to transfer the special repair reserve.

3. As to the third ground for appeal

The court below determined that, inasmuch as the special repair reserve of a rental business operator under the former Rental Housing Act is to be mandatorily accumulated by the rental business operator to prepare for the implementation of the long-term repair and maintenance plan of rental housing and prevent the deterioration of the building, and thus, even if the plaintiff and the defendant agreed that the expenses for the repair and maintenance incurred after the acquisition of the apartment of this case and the expenses for the additional facility investment incurred after the enactment, alteration or alteration of Acts and subordinate statutes should be borne by the occupants, such circumstance alone cannot be deemed to have been the reason that the defendant's duty to collect and accumulate the special repair reserve, which was naturally borne by the management entity, and the obligation to hand over the special repair reserve under the premise thereof,

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and there is no error of law by misapprehending the legal principles on the duty to transfer special repair reserve funds as alleged in the grounds of appeal.

4. As to the fourth ground for appeal

In light of the circumstances stated in its holding, the lower court determined that the period of extinctive prescription of the Plaintiff’s special repair allowance claim against the Defendant should be ten years as stipulated in Article 162(1) of the Civil Act, in light of the following: (a) the Defendant’s duty to accumulate and transfer the special repair allowance for the Plaintiff is a legal obligation under which the provisions of relevant laws, such as the former Rental Housing Act, are required to be borne by the Defendant; and (b) there is no reasonable ground to deem that there is a need to promptly

In light of the relevant legal principles and records, the judgment of the court below is just and acceptable, and there is no error of law by misapprehending the legal principles as to the period of extinctive prescription of the obligation to transfer the special repair reserve fund.

5. Ground of appeal No. 5

A. According to Article 38-2 of the former Housing Construction Promotion Act, the management entity shall collect and accumulate the special repair reserve necessary for the replacement and repair of main facilities of multi-family housing from the occupants, and according to Article 3 subparagraph 4 and subparagraph 5 of the same Act, the management entity includes a rental business operator under the Rental Housing Act before transferring the management business. In full view of the circumstances as stated in its reasoning, the court below rejected the Defendant’s assertion that the period of sale for sale for sale for sale is the completion date of the special repair reserve, on the ground that the Defendant is obligated to accumulate the special repair reserve from May 14, 1999 after one year from the inspection of the use of the apartment of this case to December 30, 203, the day before transferring the management business to the Plaintiff

B. However, we cannot accept the judgment of the court below for the following reasons.

(1) A rental business operator bears the obligation to accumulate special repair reserve funds under the former Rental Housing Act before the conversion of rental housing into sale, but from the time of the conversion of all or part of rental housing into sale, he/she bears the obligation to collect and accumulate special repair reserve funds from the selling household as the management entity under the former Housing Construction Promotion Act, and unlike the obligation to transfer the special repair reserve funds under the former Rental Housing Act to the council of occupants' representatives after the conversion of sale to the rental housing regardless of whether the rental business operator actually accumulated it as the business entity, the special repair reserve funds under the former Housing Construction Promotion Act merely collect and accumulate the funds actually accumulated by the rental business operator as the management entity on behalf of the owner of the household or the council of occupants' representatives (see Supreme Court Decision 2012Da1573, Mar. 28, 2013).

(2) According to the reasoning of the judgment below and the record, the defendant converted the apartment of this case into the general housing which can be owned by the public rental housing around July 2003, and the plaintiff was an organization composed of occupants of the apartment of this case based on the Rental Housing Act for the management of the apartment of this case on December 31, 2003, and the fact that the management of the apartment of this case was transferred from the defendant on December 31, 2003, and that there was no funds accumulated by the defendant as the special

Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that the defendant does not have the obligation to transfer the allowance for special repair after the transfer of the apartment of this case from July 2003 to the plaintiff, since it is not a rental business operator under the former Rental Housing Act but a management entity replacing the council of occupants' representatives pursuant to the former Housing Construction Promotion Act, not a rental business operator under the former Housing Construction Promotion Act, and there is no fund accumulated as the allowance for special repair and maintenance.

(3) Nevertheless, the lower court rejected the Defendant’s assertion on the ground that, even after the completion of the conversion of the apartment in this case into sale, the Defendant still has the obligation to collect and accumulate the special repair reserve funds, and thus, the lower court erred by misapprehending the legal doctrine on the completion period of the duty to accumulate the special repair reserve funds, or failing

6. Regarding ground of appeal No. 6

The "housing supply area", which is the basis for calculating the special repair reserve, includes both the whole oil area and the common area (see Supreme Court Decision 2012Da101312, Mar. 28, 2013). Thus, the court below is just to regard the housing supply area as 74,054m2m2, including the whole oil area and the common area of the apartment of this case, based on the calculation of the special repair reserve to be collected and accumulated by the defendant, as the standard for calculating the special repair reserve, and there is no error of law by misapprehending the legal principles as to the area of the housing which serves as

7. Conclusion

Therefore, 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 Kim Shin (Presiding Justice)