[1] The case holding that the above resolution violated the method of calculating voting rights under the Act on the Ownership and Management of Aggregate Buildings, in a case where one voting right (one voting right in a case where the size is less than 10 square meters) has been granted for each 10 square meters of the entire store area by a resolution to amend the articles of association, which is the management organization agreement

[2] The standard for determining whether the abolition of the existing management body’s regulation with restriction on the business type of a commercial building constitutes “when the partial sectional owner’s right has a special effect” under the latter part of Article 29(1) of the Act on the Ownership and Management of Aggregate Buildings

[1] Articles 12, 29(1), and 37(1) of the Act on the Ownership and Management of Aggregate Buildings / [2] Article 29(1) of the Act on the Ownership and Management of Aggregate Buildings

Plaintiff 1 and one other (Attorney Kang Sung-ok, Counsel for the plaintiff-appellant)

Defendant (Law Firm New Year, Attorneys Cho Yong-hoon et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2007Na11116 decided July 25, 2008

All the judgment below is reversed, and the case is remanded to Daejeon High Court.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 and 2

A. The court below rejected the plaintiffs' exclusive right of sale under the premise that the plaintiff's exclusive right of sale under the former provisions of the articles of association was valid as not only the quorum requirements stipulated in Article 29 (1) of the Act on the Ownership and Management of Aggregate Buildings, but also the requirement for the revision of the articles of association of the non-party committee at the time of the non-party committee's establishment of a resolution to adopt a new articles of association (hereinafter "resolution of December 17, 2007"), which is a management organization under Article 23 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the "Act") to adopt a new articles of association (hereinafter "resolution of December 17, 2007"), which is a management organization under Article 23 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act"), since there was an affirmative consent of 1,042 of the total voting right per 10 square meters (one sheet in a case of less than 10 square meters).

B. However, we cannot accept the above judgment of the court below as it is.

1) First, Article 29(1) of the Aggregate Buildings Act provides that the assembly of the management body shall obtain the consent of at least 3/4 of the sectional owners and voting rights at the time of the establishment, amendment, and repeal of the management body’s regulations, and this provision is a mandatory provision. Therefore, the amendment of the articles of association of the non-party committee, which has the nature of the management body’s regulations, should satisfy the quorum under the above provision.

2) However, the voting rights of each sectional owner at the management body meeting, unless otherwise expressly provided for in Articles 37(1) and 12(a) of the Aggregate Buildings Act, shall be based on the size of the section for exclusive use, and according to the evidence duly adopted by the court below, the articles of association of the non-party committee does not seem to have any special provision on granting voting rights to the sectional owners of the Aggregate Buildings Act (Article 8(4) at the time of the committee meeting, but it does not seem to have any special provision on granting voting rights as provided in Article 37(1) of the Aggregate Buildings Act, although Article 8(4) of the articles of association at the time of the committee meeting, it does not seem to have any special provision on granting voting rights to the non-party committee based on the number of stores). According to the reasoning of the court below, the non-party committee granted 10 square meters of the entire area of each store (10 square meters of less than 10 square meters of voting rights even according to the above decision in itself, such a resolution does not violate the method of calculating the voting rights stipulated in its reasoning.

3) In addition, even if there was an affirmative vote of 1,042 of the voting rights 1,257 votes calculated as above in the resolution to abolish the former Articles of Incorporation and to adopt the new articles of incorporation at the time, so long as it is impossible to confirm who the individual sectional owners approved the resolution, it cannot be readily concluded that at least 3/4 of the sectional owners approved the resolution, and it cannot be determined that the resolution was satisfied the quorum for the sectional owners under Article 29(1) of the Aggregate Buildings Act.

4) Nevertheless, the court below determined that the resolution made on December 17, 2007 by giving voting rights in the above way as above satisfies each of the above quorum. In so doing, the court below erred by failing to exhaust all necessary deliberations as to whether the quorum under the Act on the Ownership and Management of Aggregate Buildings is satisfied, or by misapprehending the legal principles on the method of calculating voting rights and the method of calculating the quorum under the Act on the Ownership and Management of Aggregate Buildings, which affected the conclusion of the judgment.

2. As to the third ground for appeal

A. The lower court determined that the Plaintiffs’ individual consent is unnecessary for the above resolution on the ground that it does not constitute “when the partial sectional owners’ rights are affected” under the latter part of Article 29(1) of the Act on the Ownership and Management of Aggregate Buildings, even if the resolution of a new articles of incorporation, which does not impose any restriction on the repeal of the provisions of the articles of incorporation and the type of business subject to the restriction on the type of business of the business of the Gamagra shop according to the resolution of December 17, 2007, is affected equally by all sectional owners

B. However, setting the type of business that a sectional owner is obliged to operate in each store according to the regulations is meaningful to ensure that the sectional owner of a specific store exclusively operates the business, so if the regulations are repealed and the new regulations that do not have any restriction on business are adopted, it would result in deprivation of the existing exclusive status that the sectional owner enjoy. In such a case, the amendment regulations are applied equally to all sectional owners. Therefore, it cannot be said that the effect of individual sectional owners is the same because they lose their independent status. Therefore, in light of the necessity and rationality of the abolishment of the above regulations and the benefits and disadvantages that each sectional owner would suffer from the abolishment of the regulations, the court below should have deliberated on whether they exceeded the reasonable limit to be suffered by the plaintiffs in light of the actual condition of the sectional ownership relationship, and should have determined whether they should have obtained individual consent by determining whether they constitute “when they have a special effect on the rights of some sectional owners” under the latter part of Article 29(1) of the Aggregate Buildings Act.

C. Therefore, the judgment of the court below that the abolition of the above regulation has an identical effect on all sectional owners, is erroneous in the misunderstanding of legal principles as to the latter part of Article 29 (1) of the Aggregate Buildings Act, which affected the conclusion of the judgment. Thus, the ground of appeal on this point is justified.

3. Conclusion

Therefore, all of the judgment below is reversed, and 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 Ill-sook (Presiding Justice)