[1] The nature of the legal relationship claiming the exclusion of disturbance and the return of unjust enrichment against the third party in a case where the third party illegally occupies the site or attached facilities of the building that belongs to the common use area or the common use area or the common use area of the sectional owner, and the subject and method of exercise

[2] The validity of the management rules of the collective housing that stipulate that the council of occupants' representatives may exercise the right to request removal of disturbance on behalf of the sectional owners of the collective housing (=negative)

[1] In the aggregate building, where a third party illegally occupies the site or attached facilities of the building that belongs to the section for common use or the common use or the common use or the common use or the common use or the right of common use such as common use or the right to claim compensation for damages against the third party, the legal relation is not a legal relation which belongs to the group of sectional owners, but is based on the co-ownership right of the section for common use or the right to claim compensation for damages. Therefore, the lawsuit can be instituted first by the sectional owners, respectively or in entirety. Furthermore, when the sectional ownership relation is established with respect to the aggregate building, the management body is organized as an organization aimed at enforcing matters concerning the management of the building and its site and attached facilities as all the sectional owners. If the manager is appointed by the resolution of the

[2] The council of occupants' representatives established pursuant to Article 38 of the Housing Construction Promotion Act and Article 10 of the Decree on the Management of Multi-Family Housing only have management authority such as determining and implementing matters concerning the management of multi-family housing, and can not exercise judicial rights such as a request for exclusion of disturbance against illegal possessors of common areas, etc. which belong to the sectional owners. In addition, special provisions of the Housing Construction Promotion Act on management methods and standards of multi-family housing pursuant to Article 6 of the Addenda to the Multi-Unit Residential Building Management Act concerning management methods of multi-family housing are effective if they conflict with the above Act and undermine the basic rights of sectional owners. Thus, even if

[1] Article 265 of the Civil Code, Articles 16, 23, 24, and 25 of the Multi-Unit Residential Building Act / [2] Article 38 of the Housing Construction Promotion Act, Article 10 of the Decree on the Management of Multi-Unitial Building, Article 6 of the Addenda to the Multi-Unit

Korean residents' representatives' representatives

Gangnam Urban Gas Co., Ltd. (Attorney Han-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na24210 delivered on February 11, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

In the aggregate building, where a third party illegally occupies the site or attached facilities of the building belonging to the section for common use or the co-ownership of sectional owners, the legal relationship between the exclusion of disturbance and the return of unjust enrichment or the claim for damages against the third party is not based on the co-ownership right such as common areas, etc. which belongs to the sectional owners, and thus, the first or all sectional owners may file a lawsuit. Furthermore, if a sectional ownership relation is established with respect to the aggregate building, the management body is organized by an organization with the aim of carrying out matters concerning the management of the building and its site and attached facilities as all the sectional owners. If the manager is appointed by the resolution of the management body meeting, the manager may act on behalf of the management body in connection with the business execution.

On the other hand, the council of occupants' representatives established pursuant to Article 38 of the Housing Construction Promotion Act and Article 10 of the Decree on the Management of Multi-Family Housing only have management authority such as determining and implementing matters concerning the management of multi-family housing, and can not exercise the above rights that belong to the sectional owners. In addition, pursuant to Article 6 of the Addenda to the Multi-Unit Residential Building Management Act, special provisions of the Housing Construction Promotion Act on management methods and standards of multi-family housing are effective if they violate the above Acts and subordinate statutes and undermine the basic rights of sectional owners, and therefore, the council of occupants' representatives can exercise the right

In the same purport, it is proper that the court below rejected all claims against the defendant for removal of the facilities of this case, delivery of the site portion, and restitution of unjust enrichment and compensation for damages arising from the occupancy and use of the site, based on the management authority of multi-family housing. There is no error

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party.

Justices Zwon (Presiding Justice)