2014Da89447 (Management expenses of the principal office)

2014Da89454 (Counterclaim Management Service Costs, etc.)

A Building Management Body

person

Stins Co., Ltd.

Seoul High Court Decision 2014Na9016 (Main Office), 2014Na9023 decided November 21, 2014

(Counterclaim) Judgment

February 18, 2016

The part of the lower judgment regarding the counterclaim is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A management body under Article 23 (1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Aggregate Buildings Act") is established not by any organization but by all sectional owners in case where a sectional ownership relationship is constituted not by an organization.

As an organization becomes an organization, when the sale of an aggregate building is commenced and the need for joint management arises due to the commencement of the sale of an aggregate building and the occupancy, a management body is established with all sectional owners including the sectional owners of the unsold section for exclusive use at that time (see, e.g., Supreme Court Decision 2003Da45496, Nov. 10, 2005). Meanwhile, Article 41(1) of the Aggregate Buildings Act provides that "where there exists an agreement in writing with at least 4/5 of sectional owners and voting rights regarding the matters determined to be resolved at the management body meeting, a resolution by the management body meeting shall be deemed to have been adopted." Article 24(2) of the Aggregate Buildings Act provides that the resolution on the appointment of a management body can be adopted by the management body meeting, and such written resolution is to be treated equally as the resolution by the management body meeting without holding the management body meeting, so it is unnecessary to convene and hold such written resolution (see, e.g., Supreme Court Decision 2006Da34636, Mar. 28, 2006).

2. According to the reasoning of the judgment below and the record, three co-defendant B, C, and F (hereinafter referred to as "three persons, such as B, etc.") of the court below concluded the instant service contract with the defendant (Counterclaim plaintiff; hereinafter referred to as "the defendant") on September 23, 2005 on the entrustment of the management of the building of this case, and the defendant started to manage the building of this case from Oct. 1, 2005 to Oct. 2005. The service contract of this case is to be extended to Sep. 1, 2005 to Sep. 20, 2008 to Sep. 30, 2008 to the effect that the period of the contract of this case is to be extended to Sep. 1, 2005 to Sep. 20, 2008 to the effect that the owner of the building of this case will have no longer participate in the sale contract of this case, which is the first sectional owner designated by the manager or the manager of the building of this case (the sale contract of this case will be extended to Mar. 1).

Examining these facts in light of the legal principles as seen earlier, it is reasonable to view that three and several buyers, who are the owner of the building of this case or the buyer of this case, agreed in advance 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 the individual sales contract, and at the same time agreed to accept such individual written agreement among buyers. Furthermore, it is reasonable to view that three and three buyers, etc. appointed as the management manager, by a written resolution as above, agreed explicitly on the ratification of the instant service contract concluded with the Defendant for the management entrustment of the building of this case. Accordingly, after the establishment of the Plaintiff, it shall be deemed that the service contract of this case was effective to the Plaintiff before the expiry of the lawful period of the service contract of this case, and that the Plaintiff agreed to the Defendant

It is the duty to pay the unpaid service cost during the above period.

Nevertheless, the lower court dismissed the Defendant’s counterclaim claim for payment on the ground that it is difficult to view that three persons, including B, etc., were in the position of managing body consisting of all sectional owners of the instant building, and the Defendant cannot file a claim against the Plaintiff for payment of the unpaid service charges, etc. under the instant service contract. In so doing, the lower court erred by misapprehending the legal doctrine on written resolution in lieu of the resolution of managing body meeting.

An error is found.

3. Therefore, the part concerning the counterclaim among the judgment below is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Kim Yong-deok

Justices Kim Jae-han

Chief Justice Kim Jong-il