[1] In a case where a building owner constructed and sold a commercial building by setting the type of business for each shop, and the transferee or lessee of the position of the buyer of the shop, or lessee, etc. violates the contract for restricting the type of business as stipulated in the contract for sale in lots, whether a person whose business interest is at risk of being infringed

[2] Whether restrictions on the type of business stipulated in the sale contract, etc. may be modified after the establishment of a management body in an aggregate building, through the management body regulations (affirmative), and the requirements thereof (i.e., the buyer or sectional owner’s own agreement), and where the sectional owner or the buyer has delegated the right to vote on the management of the commercial building to the lessee, etc. in advance and comprehensively, or granted the right to representation on the consent to the alteration of the type of business, whether the lessee, etc. may establish or change the category of business through a resolution or agreement

[1] It is reasonable to view that the owner of a building constructed a commercial building and sells it in lots, the buyer of the shop, the transferee of the position of the shop, or the lessee of the shop agreed to accept the obligation of restrictions, etc. on the type of business agreed implicitly in the sales contract in the mutual relation to the shop occupants, barring any special circumstance. Therefore, the transferee of the position of the buyer of the shop, the lessee of the shop, and the lessee have the right to claim the prohibition of business of the same type of business in order to eliminate infringement if he/she violates the agreement of restriction on the type of business set forth in the sales contract, etc.

[2] Where a commercial building is an aggregate building subject to the regulation of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “the Act”), if the sale of buildings is commenced and the need for joint management arises due to the commencement of occupancy, a management body under Article 23 of the Act on the Ownership and Management of Aggregate Buildings consisting of all the sectional owners including the sectional owners of the unsold section of exclusive ownership at that time. After the establishment of a management body, a management body may naturally establish or change such restrictions on the above types of business through the management body regulations under Article 28 of the Act on the Ownership and Management of Aggregate Buildings. Since such restrictions on the types of business basically have significance to guarantee exclusive management rights to the buyers or sectional owners, it is necessary to reach an agreement on the following matters: the exercise of voting rights by the sectional owners for the enactment and amendment of the regulations on the management body may be done by proxy (Article 38(2) of the Act on the Ownership and Management of Aggregate Buildings), and the expression of consent by the sectional owners or purchasers on the change of the type of business is also the same, and there is no need for the change or comprehensive consent to grant of voting rights.

[1] Article 105 of the Civil Act / [2] Articles 23, 28, and 38 (2) of the Act on Ownership and Management of Condominium Buildings

[1] Supreme Court Decision 2009Da61179 Decided December 24, 2009 (Gong2010Ha, 1208) Decided May 27, 2010 / [2] Supreme Court Decision 94Da27199 Decided August 23, 1996 (Gong196Ha, 2797), Supreme Court Decision 2003Da45496 Decided November 10, 2005 (Gong2005Ha, 1930)

Plaintiff (Law Firm New Year, Attorneys Cho Yong-il et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Han-chul et al., Counsel for defendant-appellee)

Daejeon High Court Decision 2010Na8097 decided August 26, 2011

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment of the court of first instance cited by the court below, the court below acknowledged the following facts: the management form of the commercial building of this case occupied by the plaintiff and the defendant, the composition of the X-Coa management body (hereinafter "the management body of this case"), the contents of the rules, such as the superstore operating management rules on the management of the commercial building of this case (hereinafter "the agreement of this case"), restrictions on the shop occupants and the procedure for approving the change of the business type; and the plaintiff's pharmacy operation did not follow the approval procedure on the restriction of the business type or the change of the business type under the agreement of this case, which was enacted and implemented effective by the management body of this case; therefore, the management body of this case cannot be deemed to concurrently hold the position of the management body under the "Act on the Ownership and Management of Aggregate Buildings" (hereinafter "the Aggregate Buildings Act"), but it did not admit that the agreement of this case was in accordance with the resolution of this case or the change of business type under Article 29 (1) or Article 41 (1) of the agreement of this case.

2. However, the lower court’s determination is difficult to accept.

A. It is reasonable to view that the owner of a building constructed a commercial building for the purpose of selling it in lots, the buyer of the shop, the transferee of the position of the shop, or the lessee of the shop agreed to accept the obligation of restrictions on the type of business agreed upon in the sales contract, etc., in the mutual relation to the shop occupants, barring any special circumstance. Thus, the transferee of the position of the buyer of the shop, the lessee of the shop, and the lessee, etc. have the right to claim the prohibition of business of the same type of business in order to avoid infringement (see Supreme Court Decisions 2009Da6179, Dec. 24, 2009; 2007Da8044, May 27, 2010, etc.).

Meanwhile, if a commercial building is an aggregate building subject to the regulation of the Act on the Ownership and Management of Aggregate Buildings and the need for joint management arises due to the commencement of sale in lots and the commencement of occupancy, a management body under Article 23 of the Act on the Ownership and Management of Aggregate Buildings consisting of all sectional owners including sectional owners of the unsold section of exclusive ownership at the time of the establishment of the management body can be newly established or modified through the regulations of the management body under Article 28 of the Act on the Ownership and Management of Aggregate Buildings. Since the restriction on such a type of business basically has the meaning of guaranteeing exclusive management rights for the relevant type of business, it is necessary to reach an agreement with several buyers or sectional owners, who are not third parties such as lessees, etc. or those who own sectional owners, for the subsequent revision of the regulations on the management body: Provided, That the exercise of voting rights by sectional owners for the establishment and amendment of the regulations on the management body can be deemed to have been done through their representatives (Article 38(2) of the Act on the Ownership and Management of Aggregate Buildings, and the granting of voting rights or the granting of authority must be individually and specifically determined 10.

B. According to the facts acknowledged by the court below, since the statute of this case was enacted around February 1995, it was now established after August 16, 1996 and around January 1, 1999, and about four times of January 1, 2004, and January 1, 2007. Accordingly, the management body of this case is composed of all separate owners and occupants of the commercial building of this case (Article 1(3)), but the qualification of the "member" exercising voting rights is a person who owns and operates the divided ownership of the commercial building of this case. A person who owns the divided ownership of this case but occupies and leases the divided ownership of the commercial building of this case, and leases and leases the divided ownership of the commercial building of this case to a person who owns and leases it (Article 5(1) through (3) of this case only formally, and a person who does not directly occupy the commercial building of this case but is not entitled to the resolution of the management body of this case under the Aggregate Buildings Act.

However, the instant provision was enacted for the purpose of the joint management of the instant commercial building, which is an aggregate building, and stipulated as one of the relevant laws (Article 1(1)). It should be deemed that the members of the instant management body, which are the members of the sectional owners, serve as a management body under the Act on the Ownership and Management of Aggregate Buildings. As seen earlier, in Article 38(2) of the Act on the Ownership and Management of Aggregate Buildings, the voting rights of the sectional owners can be exercised through their agents. In the instant commercial building, if the merchants who rent the commercial building directly from the sectional owners who did not intend to engage in business activities, rather than in the case of the tenant's direct sale of the commercial building, the instant provision provides that the tenant's right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right to exercise the right of the sectional owners under the Act on the Ownership and Management of Aggregate Buildings, even if 15 years have been fully accepted as the sectional owners' right to exercise the right.

C. In addition, since the management body rules have been enacted or amended, it is not presumed that the rules are valid as a matter of course because they meet the legitimate resolution requirements under the Act on the Ownership and Management of Aggregate Buildings. However, as seen earlier, the rules of this case had been amended four times from September 10, 2009 to September 10, 2009, and the following conditions of the resolution have been specified in the Addenda to the bylaws of this case. Thus, unless there are special circumstances to suspect that the contents of the agreement are different from the facts, it is reasonable to presume that there was a resolution as stipulated in the Addenda, and special circumstances to deem that the contents of the agreement are different from the facts should be specifically asserted and presented in the disputing party.

D. Ultimately, in light of the above circumstances, the court below should have determined whether the exercise of voting rights by the occupant who is not a sectional owner is based on legitimate power of representation in accordance with the above legal principles, and if it is deemed valid, whether the necessary quorum has been satisfied at the time of the enactment and amendment of the instant regulations, even if the subsequent resolution was not satisfied with some resolutions on the enactment and amendment of the instant regulations, it should have determined whether there was a valid business type limitation under the instant regulations at the time of the Defendant’s sale of the commercial building, and whether the restriction on the first sale of the commercial building still remains valid, as stated in the Addenda to the instant regulations, under the premise that the instant regulations were enacted and amended with the consent of 3/4 of the occupant (including the tenant who is a sectional owner and the tenant who is not a sectional owner, and the tenant who is not a sectional owner).

Nevertheless, the court below rejected the plaintiff's claim of this case based on the reasons stated in its reasoning without any need for further review. In so determining, the court below erred by misapprehending the legal principles on the requirements for establishment and amendment of the management body regulations, resolution methods, and burden of proof as to the restriction on the business type of commercial buildings, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

However, with respect to the existence of the foregoing restriction on business sector, even if the agreement of this case prescribes that the five floors where the original and the defendant's store is located may be otherwise determined by a separate agreement with regard to the restriction on business sector (Article 25 (5)). Accordingly, five floors from the 5th floor conference rule enacted around November 23, 2005, which decided that the restriction on business sector of this case should not be imposed any restriction on the business category. Thus, it is pointed out that the defendant needs to determine the validity of the claim of this case by examining whether the management body of this case can refuse it, and whether the plaintiff's consent or consent is necessary.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court 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 Kim Shin (Presiding Justice)