(영문) 서울서부지방법원 2015.2.5. 선고 2014나5139 판결

Optionally, the defendant shall pay to the plaintiff 22,537,828 won with 5% interest per annum from June 22, 2013 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment. The defendant shall pay to the plaintiff 22,060,000 won with 5% interest per annum from December 1, 2010 to the delivery date of a copy of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff falling under the order to pay is revoked. In selective choice, the defendant shall pay to the plaintiff 21,344,439 won with 5% interest per annum from June 22, 2013 to the service date of a duplicate of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment (the judgment of the court of first instance partially accepted the claim for return of unjust enrichment among the selective claims of the plaintiff, and the plaintiff did not expand the separate claim while seeking the cancellation of the part against the plaintiff among the judgment of the court of first instance against the plaintiff. Thus, the purport of appeal shall be determined as above).

The Defendants: The part of the first instance judgment against the Defendant shall be revoked, and the Plaintiff’s claim corresponding to the above revocation shall be dismissed.

Reasons

1. Facts of recognition;

A. E Co., Ltd. (hereinafter referred to as E) constructed and obtained approval for use on February 20, 2009, a 8 underground floor consisting of apartment buildings, officetels, commercial buildings, and hotels, etc., and 2 main complex buildings of 40 floors above ground (hereinafter referred to as the instant building, and when referring separately to only the main commercial building, referring to the instant commercial building) on the ground of Mapo-gu Seoul Metropolitan Government.

B. Of the instant buildings, apartment buildings, officetels, and commercial buildings are located under sectional ownership; among them, commercial buildings are located under the first and second underground floors; officetels and apartment buildings are located between the 10th and the 40th above ground level; and the Defendant is a representative meeting of the occupants comprised of seven representatives from each building in respect of apartment buildings, officetels, and commercial buildings among the instant buildings. In fact, the management body composed of all sectional owners has not organized the management body’s duties.

C. Around January 2010, the Defendant decided to entrust the instant building to Korea Management Co., Ltd. (hereinafter “the instant management company”), and accordingly, the instant management company, as the manager or the management entity prescribed by the management rules on the instant building, was in charge of the duties of maintaining and repairing common areas, and the collection of management fees and usage fees.

D. Although the instant building is to be supplied with heating and cooling to each household due to the operation of boiler and heavy ion pumps installed in the central heating and cooling machinery room, there is no measuring instrument installed for measuring the amount of air-conditioning and heating usage by each household or store, the instant management company claimed for the heating and cooling expenses imposed by the urban gas supply company on the instant commercial building in proportion to the ratio of the area of each commercial building to the owners or lessees of the instant commercial building in proportion to the ratio of the area of each commercial building.

E. In addition, the parking lot of the building of this case is stipulated in the management rules of the building of this case as the parking lot used by the commercial user and the parking lot used by the apartment and officetel user was separated, and the management company of this case has appropriated the operating expenses for the parking lot used by the commercial user as parking income. Since November 2012, the parking income alone was difficult to cope with the parking lot operating expenses, the management company of this case claimed the remainder of the parking income limited from the parking lot operating expenses as the management fee of the building of this case in proportion to the ratio of the area of each commercial building to the owner or lessee of the commercial area of this case.

F. Meanwhile, according to the instant management rules, where the management fee is not paid within the given period, additional dues shall be imposed at the rate of 2% for the two months, 5% for the three months to four months, 10% for the five months to eight months, 15% for the nine months to 12 months, and 20% for the year exceeding one year.

G. On November 1, 2009, the Plaintiff leased the instant building No. 201, the second floor non-201 (hereinafter “instant store”) among the instant buildings, and operated a restaurant in the name of I, and thereafter began to pay the whole or part of the management expenses for two to four months from that time. In addition, on November 2010, the Plaintiff obstructed the central heating and cooling supply facilities connected to the instant store, and installed individual heating and cooling facilities, such as boiler, on the ground that the heating and cooling facilities installed in the instant building are insufficient, and accordingly, paid only the remainder of the management expenses except the heating and cooling expenses for each household, by asserting that there was no obligation to pay the heating and cooling expenses for each household, among the management expenses claimed by the Defendant. Since then, on or after November 2012, the Plaintiff did not pay them.

H. As of June 20, 2013, the instant management company appropriated the management expenses paid by the Plaintiff to the principal of the management expenses, including the late payment charges prescribed by the instant management rules and the heating and cooling expenses for each household, and as of June 20, 2013, the unpaid amount among the management expenses up to April 2013 by the Plaintiff was 21,432,530 won (=20,114,810 won + 1,317,720 won (including the amount including the heating and cooling expenses for each household) and the late payment charges of 1,317,720 won (=20,110 won + 1,810 won + 1,317,720 won). On June 21, 2013, the Plaintiff added the above amount to the management company from May 1, 2013 to the management expenses up to June 21, 2013, plus the total amount of KRW 7,116,081,28138 won

I. On August 2, 2013, the Defendant held a meeting and passed a resolution to the effect that the instant management company approves all the management expenses imposed on the Plaintiff, who is an occupant of the instant store, and again, the Defendant held a meeting on January 20, 2014 and passed a resolution to the effect that the instant management company confirmed that the operating expenses imposed on the instant management company, which were imposed on the occupant of the instant commercial building, were properly imposed and approved.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 15-1 through 3, Eul evidence 16-1, 2, Eul evidence 17, 18, Gap evidence 21 through 23, Gap evidence 27-1, 2, Eul evidence 1, Eul evidence 2-2, Eul evidence 4-1 through 3, Eul evidence 5, 6, Eul evidence 9-1 through 4, Eul evidence 10-1 through 14, Eul evidence 16, Eul evidence 16, Eul evidence 19, Eul evidence 21, 222, the fact-finding conducted by the court of first instance with respect to Eul corporation, the purport of the whole pleadings, the fact-finding conducted by the court of first instance as to Eul corporation

2. The assertion and judgment

A. Determination on the claim for return of unjust enrichment

(1) The plaintiff's assertion

The Plaintiff asserts that: (a) the heating and cooling expenses per household constitute management expenses for exclusive areas; (b) the Plaintiff is obligated to pay the heating and cooling expenses for each household according to the supply of the central heating and cooling, as the Plaintiff sought prior understanding on the blocking of the central heating and cooling facilities and operating the individual heating and cooling facilities; (c) the Plaintiff is not obliged to pay the expenses for the heating and cooling for each household; and (d) the Defendant’s 21,432,530 won, claiming that the expenses for the heating and cooling for each household are unpaid until April 2013; and (e) it is unclear grounds for calculating the expenses for the heating and cooling for 21,432,520 won from May 1, 2013 to June 21, 2013, the Defendant is obligated to return the expenses for the heating and cooling for each household plus 22,537,828 won (=21,430 won, 530 won + 823,8230 won,281).

(2) Determination

(A) First, we examine whether the Plaintiff is liable to pay heating and cooling expenses for each household to the Defendant.

Article 45 (1) of the Housing Act provides that "the occupants and users of multi-family housing shall pay the management expenses necessary for the maintenance and management of the multi-family housing to the management entity," and Article 45 (2) of the same Act provides that "the necessary matters concerning the contents, etc. of the management expenses shall be prescribed by Presidential Decree," and Article 58 (1) and attached Table 5 of the Enforcement Decree of the Housing Act provides that "he heating expenses" shall be included in the items of the management expenses, along with general management expenses, cleaning expenses, disinfection expenses, elevator maintenance expenses, etc., and the management expenses listed in Article 58 (1) of the Enforcement Decree of the Housing Act are the management expenses for academic consultation, which need to be uniformly maintained and managed for the direct maintenance and management of the common area of the multi-family building and for the common interest of all occupants.

On the other hand, Article 2 subparagraph 4 of the Act on the Ownership and Management of Aggregate Buildings provides that "the section for common use" means the section of a building other than the section for exclusive use, the accessory to a building not belonging to the section for exclusive use, and the section for common use pursuant to Article 3 (2) and (3)", and Article 3 (2) of the same Act provides that "the section for a building and the appurtenant building under Article 1 or 1-2 may be determined as the section for common use by the rules," and Article 3 (2) and (3) and attached Table 2 and attached Table 3 of the Management Rules of this case provide that "the section for common use shall be the section for common use, but the part for the pipeline installed in the section for exclusive use shall be each

The above facts are as follows. ① The cost of heating and cooling for each household on the commercial building of this case is incurred due to the operation of central heating and cooling facilities, which are common areas. The management company of this case claims the amount imposed by the gas supply company on the commercial building of this case as management expenses for heating and cooling facilities in the name of heating and cooling for each household in proportion to the area ratio of each commercial building. ② The cost of heating and cooling facilities in the case of operating central heating and cooling facilities is the cost of maintaining and managing aggregate buildings uniformly, namely, the cost of conducting consultation, which must be spent uniformly. It is not premised on the concept that sectional owners or occupants should gain actual profits. ③ Although it is difficult to say that the Plaintiff’s use of facilities for individual heating and cooling facilities such as central heating and cooling facilities connected to the store of this case by blocking the supply of central heating and cooling facilities and installing facilities for individual heating and cooling facilities such as boiler, it is difficult to say that the Plaintiff’s use of individual heating and cooling facilities by the reason that the Plaintiff did not pay the cost of individual heating and cooling facilities to the Defendant.

(B) Next, we examine whether the Plaintiff is obligated to pay the parking lot management expenses to the Defendant.

In light of the following circumstances acknowledged by the aforementioned evidence, the parking lot of the building of the building of this case is defined as common areas under the management rules, and the commercial parking lot of the building of this case and officetels and apartment parking lot of this case are separately managed. The management company of this case claims the expenses incurred in the building of this case to each tenant in proportion to the ratio of the area of each commercial building and thus there is a reasonable ground for calculating the amount. The defendant has the right to determine the budget for management expenses under the management rules of the building of this case. Based on this, the defendant held a council of occupants' representatives on August 2, 2013 and January 20, 2014 and decided that the management company of this case should confirm that the operating expenses imposed on the tenant of the commercial building of this case were properly imposed on the tenant of the commercial building of this case and to approve it, it cannot be deemed that the plaintiff is not obligated to pay the management expenses under the name of the parking lot operation expenses concerning the part of the building of this case. Thus, the plaintiff's assertion of this part is without merit.

(C) Next, we examine whether the Plaintiff is obligated to pay additional charges following the delay in the payment of management expenses to the Defendant. As seen earlier, the Plaintiff began to delay the payment of management expenses from November 2009, and accordingly there was additional charges as prescribed by the instant management rules. The instant management company has appropriated the management expenses paid by the Plaintiff in installments for the principal and additional charges, and accordingly, the unpaid amount out of the management expenses up to April 21, 2013, including the total amount of principal 20,114,810 won and late interest 1,317,720 won, as of June 21, 2013, and there is no evidence to acknowledge that there was any error in calculating the late payment charges. Therefore, this part of the Plaintiff’s assertion is without merit.

B. Determination of damages claim

(1) The plaintiff's assertion

The Plaintiff installed an individual heating and cooling facility at the instant store on or around November 2010 because the heating and cooling system was not smooth, and it was confirmed that the air condition was discharged from the outer wall of the instant store on or around September 2011. In addition, the instant management company, which is obligated to preserve and manage the section for common use of the instant building in a state suitable for the use and profit-making by the sectional owners, did not take appropriate measures despite the Plaintiff’s demand for corrective measures over several times. Accordingly, the Plaintiff’s individual heating and cooling facility cost amounting to KRW 17,060,000 and KRW 16,824,640,000 from November 21, 201 to June 21, 2013, and thus, the Defendant, as part of the Defendant’s individual heating and cooling facility cost and late payment charge of KRW 16,820,640,000, the Defendant is obligated to compensate the Plaintiff for damages under the main text of Article 750(1) to the main text of the Civil Act.

(2) Determination

(A) First, we examine whether the Defendant, as the employer of the instant management company, recognized the employer liability under Article 756(1) of the Civil Act.

The employer’s liability for damages against an employee’s tort under the main sentence of Article 756(1) of the Civil Act provides that an employee shall compensate for damages inflicted upon a third party by using a third party. The use relationship between the employer and the illegal person, i.e., the relationship between the employer and the illegal person (see Supreme Court Decision 98Da62671, Oct. 12, 199). In the case of delegation, the delegating person is liable to compensate for the damages inflicted upon a third party due to the tort committed by the mandatary (see Supreme Court Decision 96Da25500, Apr. 28, 1998).

In this case, the facts that the defendant entrusted the management of the building of this case to the management company of this case are acknowledged as above, but there is no evidence to acknowledge that the management company of this case is practically under the direction and supervision of the defendant. Thus, the plaintiff's above assertion is without merit without further review.

(B) Next, we examine whether the Defendant, as an occupant of a structure, is liable for a defect in the installation or preservation of a structure pursuant to Article 758(1) of the Civil Act.

The liability for damages caused by defects in the installation and preservation of a structure by the possessor of a structure under the main sentence of Article 758(1) of the Civil Act is to make the possessor of the structure compensate for the damages suffered by a third party due to the failure to meet the safety ordinarily required for the use of the structure (see Supreme Court Decision 2003Da24499, Jan. 14, 2005). Since there is no evidence to support that the damages alleged by the Plaintiff were caused by the lack of safety in the section for common use of the store of this case, the Plaintiff’s assertion also is without merit without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed in its entirety due to the lack of each ground, and since the judgment of the court of first instance partially different conclusions are unfair, it shall be revoked and the plaintiff's claim corresponding to the above revoked part shall be dismissed. The plaintiff's appeal shall be dismissed as it is without merit. It is so