Plaintiff (Counterclaim Defendant)

Defendant-Counterclaim Plaintiff (Law Firm LLC, Attorneys Lee Gyeong-chul et al., Counsel for defendant-Counterclaim)

October 2, 2019

Seoul Central District Court Decision 2018Da501179 Decided November 26, 2018

1. Of the judgment of the court of first instance, the part on the counterclaim claim by the Defendant (Counterclaim Plaintiff) shall be revoked.

The Plaintiff (Counterclaim Defendant) removes the part of “A” in the ship connecting the Defendant (Counterclaim Plaintiff) with each point of the attached table 1, 2, 3, 4, and 1 on the △△ apartment ○○○○-dong roof, Gangnam-gu, Seoul, and the part of “B” and the part of “A” connected with each point of “A, 2, 3, 4, and 5 in sequence, and each point of “A, 3, 8, and 5 of the same drawings.” The part of “A,” and the part of “A,” which are collectively connected to “A, 76.14 square meters in the above part, 70.6475 square meters in the above inside, and 43.065 square meters in the above part “A,” are delivered to each of the Plaintiff (Counterclaim Plaintiff).

2. Of the total costs of the lawsuit, the part resulting from the counterclaim claim filed by the Defendant-Counterclaim Plaintiff shall be borne by the Plaintiff-Counterclaim Defendant.

3. Paragraph 1 can be provisionally executed.

○○ principal lawsuit: The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) pays to the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 10,000,000 won with interest calculated at the rate of 15% per annum from the day following the delivery of a copy of the instant complaint to the day of complete payment.

○ Counterclaim: It is as described in paragraph (1) of this Article.

The same shall apply to the order.

1. Scope of adjudication of this court;

In the first instance court, the Plaintiff filed a claim for damages against the Defendant on the ground of defamation, and the Defendant set up a counterclaim against the Plaintiff, on the premise that the roof of △△ ○○ apartment ○○○-dong, Gangnam-gu, Seoul ( Address omitted), occupied and used a garden at that place, and filed a claim for the removal of the crops planted in the part as indicated in paragraph (1) of the above order among the above rooftops, and the claim for the above part. The first instance court dismissed both the Plaintiff’s principal claim and the Defendant’s counterclaim, and only the Defendant filed an appeal as to the dismissal part of the counterclaim at the first instance court, the scope of the judgment of this court is limited to the part of the counterclaim claim.

2. Basic facts

A. The Plaintiff is the co-owners (Co-owners, the Plaintiff, and Nonparty 1’s share 1/2) and the resident of △△△△△dong apartment located in Gangnam-gu Seoul (hereinafter “instant apartment”) and is the co-owners (Co-owners, the Plaintiff and the Defendant’s share 1/2) and the resident of the instant apartment △△△△dong △△△dong, and the Defendant was the co-owners (Co-owners, Nonparty 2 and the Defendant’s share 1/2) and the resident of the instant apartment by June 30, 2018.

B. The apartment complex of this case is a complex consisting of 26 units, 1,304 units, and it was created as part of landscaping project on the 24th rooftop, including ○○○dong, from the first time of the occupancy. From around 2015, the Plaintiff formed a garden on the parts indicated in paragraph (1) of the order (hereinafter “instant rooftop parts”) among the remaining dry field on the instant apartment ○○○dong rooftop, and cultivated crops, such as wave and drilling.

[Ground for Recognition: Facts without a partial dispute, each entry in evidence Nos. 23, 32, 59, 67 (including paper numbers)]

3. Summary of the parties' assertion

A. The defendant is the cause of the counterclaim of this case. Since the 00-dong rooftop of this case is deemed to be "the entire common area" for all of the sectional owners of the apartment of this case, the defendant, a sectional owner who is not the 00-dong, pursuant to Article 11 of the Act on Ownership and Management of Condominium Buildings (hereinafter "the Act on Ownership and Management of Condominium Buildings"), has the right to use and benefit from the defendant, a sectional owner who is not the 00-dong, but the 00-dong unit owner of the apartment of this case. The plaintiff excluded the possession and use of other sectional owners by exclusively occupying and using the farmland, such as creating a garden on the rooftop of this case and cultivating crops. Thus, the plaintiff asserts that the defendant, who is entitled to the exclusion of exclusive possession

B. As to this, the plaintiff asserts that the rooftop of the apartment building of this case is not the common area for the whole sectional owners of the apartment building of this case, but the "Partial common area" for only the sectional owners of ○○ Dong, and therefore, it cannot be deemed that the defendant, not the sectional owners of ○○ Dong, has the right to use and profit from the apartment building of this

4. Facts of recognition;

A. Progression of the instant apartment ○○○-dong rooftop building project

(1) The Gangnam-gu Seoul Metropolitan Government Office implemented the project to support the development and operation of community activation programs in each apartment complex pursuant to the Gangnam-gu Seoul Metropolitan Government Ordinance on the Support for Multi-Family Housing and Dispute Resolution, and the council of occupants' representatives of the apartment of this case (hereinafter referred to as the "council of occupants' representatives") as part of the project on February 2, 2015, publicly announced the recruitment of rooftop growth groups (the president of the council of occupants' representatives was Nonparty 3 at that time) and the plaintiff, including himself, submitted an application to the apartment management office of this case, by creating the "Yeonggu Magdae-ro

(2) On February 23, 2015, the council of occupants' representatives decided to implement a gardening project on the three rooftops including the instant apartment building ○○○dong, and submitted to the Gangnam-gu Office an application for a public recruitment project for the above "Seong Yeong Yero gardening group" (total project cost of KRW 15,000,000, self-payment of KRW 5,000,000, subsidies of KRW 10,000,000) to the occupants.

(3) The Plaintiff: (a) removed turf planted on the rooftop of the instant case from the time of filing an application for a public contest project; and (b) planted and cultivated crops, such as wave, drilling, soil, etc., by building a garden. However, the Plaintiff-led the “Saear gardening group” group in △△ Gagol in Gangnam-gu Office, which fell from the public contest project of Gangnam-gu.

(4) The Plaintiff cultivated a garden on the ○○ Dong-dong rooftop even after having fallen from the public invitation project of Gangnam-gu Office, and some of the occupants of the instant apartment from May 2015 raised an issue about inconvenience caused by the use of the rooftop garden. The head of the management office of the instant apartment around March 31, 2017 publicly announced a notice that “the head of the management office of the instant apartment” would close the rooftop and prohibit the rooftop cultivation, and on April 11, 2017, the Plaintiff sent to the Plaintiff a certificate that “the Plaintiff was using the ○○ Dong-dong rooftop without permission from 2015 to 2015 that “the Plaintiff would restore the rooftop grass to her original condition and grow crops and grow crops.” However, the Plaintiff did not respond to the fact that “the Plaintiff could not cultivate the rooftop garden due to the prohibition of entry into the rooftop or claim compensation for damages.”

(5) On September 29, 2017, the head of the management office of the apartment of this case attached a notice to the effect that “the access to the rooftop is prohibited to prevent safety accidents” on the ○○○-dong rooftop, and corrected the door door with locks. Accordingly, around that time, some of the crops planted on the rooftop were dead.

(6) However, around February 19, 2018, Gangnam-gu Office imposed a fine for negligence on the head of the management office along with the corrective order, on the ground that the prohibition of access to the apartment of this case from the council of occupants' representatives prohibiting gardening cultivation on the ○○○ Dong-dong rooftop does not correspond to the unauthorized closure of public facilities and violates the method of litigation.

B. Current status of the apartment house ○○-dong rooftop

(1) A corrective device of the rooftop entrance was removed before and after the time when the representative meeting of the occupants of the apartment of this case received a corrective order for the closure of the ○○ Dong-dong rooftop from the Gangnam-gu Office. Since that time, the Plaintiff cultivated a strike and a prosecution on the rooftop again from that time until that time.

(2) According to the photographs taken around September 2019, a number of paintings are kept on the rooftop of this case, and crops are cultivated, such as digging up on the soil part of the redry field other than chemical powder or flower powder, and the remainder is left alone without removal of crops that seem to have been planted before.

C. The current status of the use of each unit of apartment in this case

(1) 이 사건 아파트 입주자대표회의는 케이티, 엘지유플러스 및 에스케이텔레컴 등 이동통신사와 이 사건 아파트 중 ▽▽▽, ◎◎◎, ◁◁◁, ▷▷▷, ♤♤♤, ♡♡♡동 7개 동의 옥상에 관하여 이동통신사 중계기 설치를 위한 임대차계약을 체결하였고, 이에 따라 이 사건 아파트 전체 26개동 중 7개 동의 옥상에 이동통신사의 중계기가 설치되어 있는데, 이동통신사에서 그 대가로 지급하는 임대료는 해당 동의 수입이 아니라 전체 입주자대표회의의 잡수입으로 처리되어 장기수선충당금으로 적립되고 있다.

(2) In order to enter each Dong of the apartment of this case, the screen fishing installed on the first floor and the underground floor entrance shall be passed, and for this purpose, the authority of access shall be granted or permission of the management office shall be obtained.

D. Details of the management rules of the instant apartment

(1) Scope of exclusive and common areas

(2) Common areas shall be the following housing units, incidental facilities, and welfare facilities, excluding the exclusive sections under paragraph (1), and the scope thereof; 1. Facilities jointly used by occupants, such as corridors, stairs and poles; 2. Other facilities for common use, such as underground floor, management offices, guard rooms, parking lots, and common facilities of multi-family housing units; 3 or more facilities for public use; 4 or more (hereinafter referred to as "facilities for common use"); facilities or equipment for public use only; 3 or more residents' convenience facilities or equipment; 4 or more residents' convenience facilities or equipment for public use; 4 or more residents' convenience facilities or equipment for public use; 4 or more residents' convenience facilities or equipment for public use; 4 or more residents' convenience facilities or equipment for public use; 4 or more residents' convenience facilities or equipment for public use; 5 or more residents' convenience facilities or equipment for public use;

(2) Calculating the apportionment of management expenses by household, etc.

Article 60 of the table included in the main sentence of Article 60 [Calculation Method of Expenses to be Borne by each household] The method of calculating the apportionments of management expenses shall be as specified in attached Table 4. Article 80 [1] The execution of miscellaneous income and the disclosure of accounts for each household] 1. 2 Miscellaneous income under Article 25 (1) 1 (b) of the Decree shall be handled in the same manner as the accounting of management expenses, etc. . (2) The following matters shall be accumulated as long-term repair appropriations:

E. The contents of the instant apartment ○○○○ Dong, △△△△dong, and the contents of the collective building register

(1) ○○○○○○○○○○○ (Plaintiff’s ownership)

In the table, * 10-100 square meters of a reinforced concrete structure apartment 59.96- - 00 square meters of a 10-story reinforced concrete structure per 10-story unit located within the main body of the table - 36.61 unit of reinforced concrete structure underground parking lot, electricity room, power generator room, pump room, 0.45 unit 0.45 unit and 1-2 floors of reinforced concrete structure, insignia centers, small libraries, small libraries, straw wells, day-to-side facilities, stairs rooms of each floor of reinforced concrete structure, elevator, corridor, corridor, 1.2 main building of reinforced concrete structure per 1.61 unit, reinforced concrete structure management office of reinforced concrete structure of 16.61 unit, disaster prevention office, DMF room, 0.19 unit and 19th unit of reinforced concrete structure, 0.05.63 square meters and less than 600-00-00 square meters of reinforced concrete structure.

(2) △△△△ Dong (Defendant's ownership)

In the table, * 114.46-6 of a reinforced concrete structure apartment with 8-story reinforced concrete structure with 114.46-2, a 2000 square meters located within the main sentence, contained in the table 69.87 section 69.87 section, which is a reinforced concrete structure underground parking lot, electricity room, power generator room, pumps room, pump room 0.86 section 0.86 section and 1-2 stories of reinforced concrete structure, insignia centers, small libraries, small libraries, shop strings, day-to-side facilities, stairs rooms, elevators, corridorss of each floor of reinforced concrete structure with 2.29 weeks for senior route, 31.7 section 1 reinforced concrete structure management offices, disaster prevention offices, DMF rooms, 0.37 section 0.37 section 17 section 17 Section 8.60-00,000 square meters and less than 6.60-000 square meters of reinforced concrete structure.

(3) However, the area of the section for common use of each aggregate building ledger does not include the area of “house surface”.

F. Method of imposing management expenses for the apartment management office of this case

(1) The apartment of this case imposes management fees on the sectional owners in accordance with the items of the management rules set forth in paragraph (d)(2) above. Service expenses, such as repair and maintenance expenses (repair expenses, facility maintenance expenses) or cleaning expenses related to each rooftop or elevator, etc., are not imposed only on the sectional owners who have divided ownership including the relevant rooftop, and is imposed on the entire sectional owners according to the ratio of the area of the section for exclusive use.

(2) For example, from July 1, 2017 to June 30, 2019, the sum of KRW 10,246,871, including the expenses for repair and maintenance of the elevator △△dong and the expenses for repair of the elevator △△dong, was allocated to 1,304 households (sale 651, lease 653).

[Ground for Recognition: Facts without partial dispute, Gap's entries and the purport of the whole pleadings as stated in Gap's Evidence Nos. 1, 2, 9, 12, 17, 25, 27, Eul's Evidence No. 1, 2, 3, 4, 9, 10, 15, 17, 24, 27, 32, 34, 52, 59, 61, 67]

5. As to whether the apartment building ○○-dong rooftop of this case is the entire common part or partial common part

A. Relevant regulations and legal principles

(1) According to Article 2 of the Aggregate Buildings Act, “the section for exclusive use” refers to “the section other than the section for exclusive use, the section for common use, the accessory to the building not belonging to the section for exclusive use, and the section for common use pursuant to Article 3 (2) and (3).” According to Article 3, the section for common use refers to “the section for common use other than the section for exclusive use, the accessory to the building which belongs to the section for exclusive use, and the section for common use which belongs to several sections for exclusive use, such as corridor, stairs, and the section for common use, which belongs to the whole structure of the sectional owners, cannot be the object of sectional ownership (Paragraph (1)), Articles 1 or 1-2 may be determined as the section for common use by regulations (Paragraph (2). Under the Aggregate Buildings Act, the section for common use belongs to the section for exclusive use by all sectional owners, but it is evident that only the section for common use is provided in common use by all sectional owners, and the area of each sectional owner’s section for exclusive use (including the section for common use) is divided of Article 12).

In addition, unless otherwise provided by the regulations, each co-owner shall bear the management costs of the section for common use and other obligations according to the ratio of his/her share, and acquire profits from the section for common use (Article 17), and the matters between the sectional owners regarding the management or use of building, site or annex facilities, which are not provided for in this Act, may be determined by the regulations (Article 28(1)), and matters concerning the section for partial common use, which are not provided for in the regulations, may be determined by the regulations of sectional owners sharing the section for partial common use (Article 28(2)).

(2) Article 10 (1) of the Aggregate Buildings Act provides that "the section for common use belongs to the co-ownership of all sectional owners: Provided, That the section for common use that is obviously provided only to the co-ownership by some sectional owners belongs to their co-ownership." Whether a part of the aggregate building is provided for the public use by all or some of the sectional owners shall be determined by the objective purpose according to the structure of the building unless otherwise agreed by the sectional owners (see Supreme Court Decisions 89Da1497, Oct. 27, 1989; 94Da9269, Feb. 28, 1995; 2004Da30279, Jun. 24, 2005).

B. Determination

(1) According to the facts acknowledged earlier, ① to enter the ○○○ Dong-dong rooftop, the entrance doors of the 1st or the 1st underground floor shall be passed. The entrance shall be installed with a control board, and the entrance shall be allowed only when the password is known or the approval of the management office is obtained. On the other hand, there is no passage to directly connect the other Dongs of the apartment of this case with the ○○ Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-type-

(3) However, comprehensively taking account of the aforementioned legal principles as seen earlier, it cannot be deemed that the pertinent ○○-dong rooftop, which was the issue in the instant case, constitutes a “section for partial common use” where it is evident that only some of the sectional owners, i.e., e., ○○-dong, were offered for common use, rather than the entire sectional owners

㈎ 건물의 구조에 따른 객관적 용도를 고려하더라도 이 사건 아파트 각 동의 옥상이 해당 동 구분소유자들만의 공용에 제공된 것으로 볼 수 없다.

According to the legal principles such as 204Da30279, part of an aggregate building is the whole common area or part common area of a building, it should be determined according to the objective use according to the structure of the building. The ○○○-dong rooftop is designed to install certain facilities on the roof in structure by carrying out not only the functions of protecting the interior of the building as a roof of the ○○-dong building, but also the functions of protecting the interior of the building from the outside environment in the structure of the building.

In fact, in the case of the apartment of this case, a dry field was created on the rooftop and was included in the total landscape area, and seven of the 26 units of the apartment of this case installed a relay system for mobile operators on the rooftop of the 7 units of the apartment of this case. As such, the benefits such as the "improvement of landscaping of apartment" and " removal of the sound zone of mobile communications" are not necessarily attributable to the sectional owners of the apartment of this case, but should be deemed to belong to the entire sectional owners of the apartment complex

As long as the benefits therefrom can affect the entire sectional owners depending on what is installed on the apartment rooftop of this case, the rooftop of each apartment of this case cannot be deemed to have been offered only for the common use of the sectional owners.

In order to approach each apartment building of this case, each Dong should pass through the entrance installed in each Dong. However, even if other Dong sectional owners are allowed to pass through the approval of the management office, so it cannot be deemed that the physical access to the rooftop of other Dong sectional owners is prohibited, and the use of the rooftop cannot be deemed to be a premise for physical access if the use of the rooftop is functionally understood as seen in the preceding paragraph. Therefore, it cannot be deemed that the objective purpose according to the rooftop structure is for only those of those sectional owners, solely on the ground that there are certain limitations on access to the rooftop of other Dong sectional owners.

㈏ 이 사건 아파트 관리규약이 전유부분을 제외한 각 동의 지상층 부분이 해당 동 구분소유자들만을 위한 일부공용부분임을 전제하고 있다고 볼 수 없다.

Article 5 (2) of the Management Rules of the apartment complex of this case provides that "the residential common area" shall be "facilities jointly used by the occupants of the apartment complex, such as corridors, stairs, port pipes, and elevators of the building." On the other hand, "other common areas" shall be "facilities jointly used by all occupants, etc. in the apartment complex, such as underground floors excluding common areas under paragraph (1), and common areas" (hereinafter "other common areas"). Thus, there is no room to interpret that the portion of the ground part of the building of this case except the section for exclusive use among one building is determined as facilities jointly used by the owner of the building who is not the whole sectional owner, but as the portion of the building of the ground floor except the section for exclusive use of the building in question falls under the section for exclusive use of the building of the building of this case. Therefore, there is room to regard that the common area provided only

However, in light of the above facts and the language and purport of the relevant provisions, it cannot be deemed that the management rules of the apartment building in this case were stipulated on the premise that the ○○○dong rooftop was “part-time common use area,” which was offered only to the public use by only the sectional owners of ○○dong.

(1) If all parts of the building except the section for exclusive use of each section on the ground as alleged by the plaintiff are considered to be the section for partial common use by the relevant sectional owners, it is not simply based on the ratio of the area of each sectional owner, but according to the ratio of the area of the section for exclusive use under Article 12(2) of the Aggregate Buildings Act, the area of the section for exclusive use for residential use, which is allocated according to the ratio of the area of the section for exclusive use by the relevant sectional owner, shall be added to that of the section

Since the number of apartment units 26 units of this case differs from the number of households, number of floors, building area, structure (hallway type, hallway type), etc., the area of residential common use area, such as corridor and stairs, is inevitably different due to such structural differences, so the area of residential common use area, which is allocated to each Dong, and the ratio of shares calculated again according to the same shall vary. Therefore, the ratio of the area of common use area, the ratio of the area of residential common use area, and the ratio of the area of other common use areas in each building located in different Dongs, as seen earlier, cannot be maintained equally by the calculation method of shares and the difference

The △△△△dong, △△△△dong (A) in the main body, and the ratio of ○○○○○○ Dong (A/B) (A/B) 114.46 square meters and 1.91 square meters of 59.96 square meters of 114.96 square meters of sections for exclusive use, elevators, holes, residential facilities for residents of 16.7 square meters of 16.7 square meters of common use, resident common facilities of 16.7 square meters of 16.91 square meters in common use, and 1.29

However, according to the aggregate building ledger of the apartment of this case, the ratio of ownership is not calculated based on the size of each Dong's corridor, stairs, etc. as stated in the above table, and the ratio of ownership is calculated based on the size of the section for exclusive use uniformly, and the area divided according to the ratio of ownership by aggregating the area of the whole residential section and other common areas.

The respective ratio of the area of each section for common use (resident common facilities, elevator, etc.) and other section for common use (resident common facilities, volatilenice center, etc.) in the building ledger of the apartment of this case is accurately consistent with the ratio of the area of the section for exclusive use. Since the area of the section for common use entered in the building ledger of this case does not differ from the area of the section for common use and other section for common use, it can be seen that the area of the section for common use was uniformly distributed to each household according to the ratio of shares calculated according to the area of the section for exclusive use, the purport of the apartment management rules of this case is difficult to view that the purpose of the apartment management rules of

② Article 80(2)1 of the Management Rules of the apartment of this case provides that “miscellaneous income accrued from the installation of heavy meters shall be accumulated in the long-term repair appropriations, and even if such relay is installed on the rooftop, the rent shall be accumulated in the long-term repair appropriations. If such relay is installed, as alleged by the Plaintiff, the profit accrued from the installation of heavy meters for only the relevant sectional owners, not the long-term repair appropriations for the entire sectional owners, but the relevant sectional owners, not the long-term repair appropriations for the entire sectional owners. Therefore, prescribing that miscellaneous income arising from the installation of heavy meters should be accumulated in the long-term repair appropriations for the long-term repair of the apartment of this case, it should be deemed that the rooftop of this case is not

(3) Article 17 of the Aggregate Buildings Act provides that each co-owner shall bear the management costs of the section for common use and other obligations according to the ratio of his/her share and obtain profits accruing from the section for common use unless otherwise stipulated by the regulations. Article 5(1)2 of the Management Rules of the apartment in this case provides that management costs of the section for common use shall be allocated to each household according to the housing supply area, such as general management costs, cleaning costs, repair and maintenance costs, and Article 81 [Attachment 5] provides that management costs of the section for common use subject to management shall be allocated to each household according to the housing supply area, and the remaining section for common use and other sections for common use, excluding section for exclusive use, among each building, shall be treated differently in the management expenses for the section for common use,

If each rooftop falls under the section for partial common use for only those sectional owners like the other section for common use as alleged by the plaintiff, this is the same as that of those sectional owners in relation to the other section for common use, so it is difficult to see that there are reasonable grounds for other sectional owners to bear the expenses incurred in the management of such section, and such expenses should be borne by the relevant sectional owners. To this end, each section for common use in common use should have been allocated to the relevant sectional owners in accordance with the management rules, to calculate the share of each sectional owner by allocating each section for common use in common use to the relevant sectional owners, and to prepare the regulations by dividing the part incurred in

However, the apartment management rules of this case do not have such provisions at all, and in fact, the expenses incurred in repairing some of the consent elevators have been distributed to all sectional owners, not to the relevant sectional owners. Therefore, the apartment management rules of this case should be deemed to be premised on the allotment of the expenses incurred in the management of the entire common area, such as rooftop, as the whole common area for common use.

Considering the content of the management rules of this case regarding the bearing of expenses incurred in the management of the residential common areas, including rooftops, it is difficult to view that the management rules are premised on the fact that the residential common areas, such as rooftop, fall under some common areas.

㈐ 실제 원고가 이 사건 옥상부분에 텃밭을 경작하게 된 계기가 된 텃밭조성사업도 전체 입주자대표회의의 결의에 따라 이루어졌다.

실제로 이 사건 아파트의 텃밭조성사업은 텃밭이 조성된 ▲▲▲동, ■■■동, ○○○동 구분소유자들의 결의에 의하여 추진된 것이 아니라 전체 입주자대표회의의 결의에 의하여 이루어졌고, 위 사업에 참여한 구분소유자들도 이들 동 구분소유자에 국한되지 아니하였다. 이는 위 텃밭조성사업이 추진된 각 동의 옥상이 해당 동 구분소유자들만을 위한 일부공용부분이 아니라 이 사건 아파트 전체 구분소유자들을 위한 전체공용부분임을 전제한 것으로 볼 수 있다.

C. Sub-committee

Therefore, since the rooftop of the apartment building of this case cannot be deemed to be a partial common area, it shall be deemed to be the entire common area. Therefore, the defendant who is a sectional owner of △△dong, not ○○○dong, and also the ○○○dong rooftop may be used according to his share ratio according to the provisions related to the aggregate building law.

6. As to the defendant's request for extradition against the plaintiff

A. As acknowledged earlier, the rooftop of the apartment building of this case is not a section for partial common use for only ○○dong sectional owners, but a section for overall common use for the entire sectional owners of the apartment building of this case. As such, not only the plaintiff who is a sectional owner of ○○○ Dong, but also the defendant who is a △△ Dong sectional owner of the apartment building of this case may use the rooftop of this case according to its purpose pursuant to Article 11 of the Aggregate Buildings Act. Further, even if the right holder of the jointly owned property is a right holder of the jointly owned property, it shall not be exclusively used without consultation with other right holder, and the remaining right holder of the jointly owned property is entitled to seek the exclusion of exclusive use, namely, the transfer of land, etc. (see Supreme Court Decisions 80Da1280, 1281, Feb. 22, 1983; 2002Da57935, Nov. 13, 2003, etc.).

B. However, in light of the facts acknowledged earlier, the Plaintiff is currently growing crops by creating a garden on the rooftop of this case, which is part of the ○○○dong rooftop. The cultivation form was kept on the soil, or planted crops directly on soil, and the remainder is left alone in the state of defoliation, which appears to have been planted by the Plaintiff. As such, as long as turdry created for landscaping was damaged and as a result, it is difficult to use the rooftop part of this case for other purposes, as long as the Plaintiff did not remove the harmful damage to the crops planted or dead crops, it is difficult to use the remaining rooftop part for other purposes, it is recognized that the Plaintiff excluded other sectional owners and exclusively occupies and uses the rooftop part of this case. Moreover, it is recognized that the council of occupants' representatives of the apartment of this case had the Plaintiff implement gardening development projects to the Plaintiff at the initial council of occupants' representatives of the apartment of this case, it cannot be deemed that the Plaintiff granted the Plaintiff the right to possess and use the rooftop part of this case, which is subject to consultation with the sectional owners or approval of the council of occupants' representatives.

Therefore, the Plaintiff is obligated to remove crops installed on the rooftop of the instant case and deliver the instant rooftop part to the Plaintiff seeking the delivery of the rooftop of the instant case, among co-owners.

7. Conclusion

Therefore, the defendant's counterclaim of this case shall be accepted on the ground of its reasoning. Since the judgment of the court of first instance is unfair on the ground of its conclusion, it accepted the defendant's appeal and dismissed the defendant's counterclaim of the judgment of first instance, it is decided as per Disposition by the assent of all participating Justices.

(attached Form omitted)

Judges Cho Sung-sung (Presiding Judge)