2017Gaz. 536703 Maz. 803

A

B

September 13, 2017

October 25, 2017

1. The Defendant shall perform the construction work necessary to prevent the leakage of spring water generated in the toilets of 703 above by replacing and repairing drainage pipes (including drain pipes of the sponse) installed between the toilets of 703, the same apartment as the toilets of 112, 803, Seocho-gu, Seoul, with the Plaintiff, for the purpose of preventing the leakage of spring water generated in the toilets of 703.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 30% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The Defendant shall execute the construction of Paragraph 1 of this case within two weeks from the date when the judgment of this case became final and conclusive. If the Defendant fails to perform the above construction within the above period, the Defendant may have the execution officer entrusted by the Plaintiff accept the Defendant’s toilet floor drainage pipes and the drain pipes, and the Defendant shall pay to the Plaintiff the amount equivalent to KRW 1,00,000 per annum from the day following the expiration of the above period to the day the performance is completed, with compensation for damages of the Plaintiff at the rate of KRW 5,00,000 per annum. The Defendant shall pay to the Plaintiff the amount calculated at the rate of KRW 15 per annum from the day following the day of delivery of the duplicate of the complaint of this case to the day of full payment.

1. Facts of recognition;

A. The plaintiff owns Seocho-gu Seoul Metropolitan Government C Apartment 112 Dong 703 (hereinafter referred to as "the plaintiff apartment"), and the defendant owns and occupies the same apartment (hereinafter referred to as "the defendant apartment") 803.

B. From March 2016, the Plaintiff notified the Defendant that water leakage was generated in the part of the Plaintiff’s toilet site, and thereafter, D, a field-based employee of the above C Apartment Management Office, visited the Defendant apartment at the Plaintiff’s request and confirmed the drain pipe of the Defendant’s toilet floor of the Defendant’s apartment. As the above drain pipe was worn down, it was confirmed that the Defendant used water in the toilet, if water is used in the toilet, the number of the Plaintiff’s apartment toilets is being carried out.

C. From that time, the Plaintiff requested the Defendant to perform the water leakage prevention work of the drainage pipe installed between the toilet floor of the Defendant apartment and the toilet ceiling of the Plaintiff apartment. However, the Defendant did not perform the water leakage prevention work until the date of closing argument in the instant case.

[Reasons for Recognition] Each entry of Gap evidence Nos. 1, 3, and 4 (including each number), witness D's testimony, the purport of the whole pleadings

2. The plaintiff's assertion

(a) Request for construction works;

If the Defendant uses water due to the deterioration of the drainage pipe of the floor of the Defendant apartment, water leakage such as running water into the Plaintiff’s toilet site was generated, and the Plaintiff has been interfered with the exercise of ownership due to the above leakage phenomenon, so the Defendant is obliged to perform water leakage prevention works to the Plaintiff within two weeks from the date of the final judgment of this case.

B. Claim for indirect enforcement, etc.

In preparation for the case where the plaintiff did not perform the above obligations within two weeks from the date when the judgment of this case became final and conclusive, the plaintiff can let the execution officer entrusted by the plaintiff repair the floor drainage pipes, etc. of the defendant apartment, and when the above period expires, the defendant shall pay the plaintiff an indirect compulsory performance amount of KRW 100,000 per day.

C. Claim for damages

Since the plaintiff suffered physical and mental damage according to the failure of the defendant to perform the above water leakage prevention work, the defendant is also obligated to pay the damages amounting to KRW 5,00,000 and the damages for delay to the plaintiff.

3. Determination on the request for construction performance

According to the above facts, it is reasonable to view that the water leakage of the Plaintiff’s apartment toilet was caused by the defect in the installation or preservation of the structure, such as rupture due to the deterioration of the toilet floor, which belongs to the part of exclusive ownership of the Defendant apartment owned by the Defendant, and the Plaintiff’s exercise of ownership over the Plaintiff’s apartment due to the water leakage phenomenon. As such, the Defendant is obliged to implement water leakage prevention work by replacing and repairing drainage pipes (including drain pipes) installed between the Defendant’s toilet floor and the Plaintiff’s toilet site (including drain pipes) in order to prevent water leakage generated from the Plaintiff’s apartment toilet.

However, the plaintiff asserts that the defendant is obligated to perform the water leakage prevention work to the plaintiff within two weeks from the date when the judgment of this case became final and conclusive, but it is difficult to recognize that the defendant is obligated to perform the water leakage prevention work within the above period on the sole basis of the evidence submitted by the plaintiff and the arguments of this case. There is no other evidence to acknowledge this differently.

Therefore, the plaintiff's request for construction performance is justified only within the scope of the above recognition.

4. Determination as to a claim such as indirect compulsory performance

In principle, compulsory execution against the ancillary obligation can only be indirectly enforced, and the decision of indirect compulsory execution is based on a certain amount of compensation when an obligor fails to perform his/her obligation through a necessary examination of the obligor upon the obligee’s separate request after the enforcement title has been established in the judgment procedure. Therefore, in a judgment procedure for the establishment of enforcement title, indirect compulsory execution in preparation for a case where an obligor fails to perform his/her obligation is deemed as at the time of the closing of pleadings in the judgment procedure, even if an enforcement title is established in view of the establishment of enforcement title, it is probable that the obligor may violate it within a short period, and also, in the said judgment procedure, the pertinent amount of compensation ordered under Article 261 of the Civil Execution Act can be calculated (see, e.g., Supreme Court Decision 2011Da31225, May 29, 2014).

However, the submitted evidence alone cannot be deemed to fall under the defendant's duty to act as a unit, and even if the defendant's duty to act as unit, it is difficult to conclude that the evidence submitted by the plaintiff alone is likely to violate the duty to act as unit. Furthermore, the plaintiff's claim is not acceptable, since there is a lack of grounds for calculating the appropriate amount of compensation for the violation.

5. Determination as to the claim for damages

The plaintiff asserts that the defendant suffered physical and mental damage due to the failure of the above water leakage prevention construction works, and claims for the defendant to pay damages of KRW 5,000,000 and damages for delay.

However, the evidence presented by the plaintiff alone is hard to recognize that the plaintiff's physical and mental damage has occurred in addition to the defendant's performance of the duty to prevent leakage of water, and there is no other evidence to recognize it. Thus, the plaintiff's above claim shall not be accepted.

6. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, Kim Jong-hun

Judges' Assistants Office

Judges For the People's Republic