[1] The meaning of "sectional owner" who is the voting right holder of the managing body's meeting for the appointment of the manager (=a person registered as the sectional owner in the register)

[2] In a case where a sectional owner’s exercise of voting rights for the appointment of a manager is performed by an agent, whether delegation of voting rights or granting of proxy rights must be done individually and specifically (negative), and whether delegation of voting rights can be implicitly and explicitly (affirmative)

[1] Articles 24(2) and 38(1) of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 2010) / [2] Articles 24(2) (see current Article 24(3)) and 38(1) and (2) of the former Act on the Ownership and Management of Aggregate Buildings (Amended by Act No. 10204, Mar. 31, 2010)

[1] Supreme Court Order 2004Ma515 Decided December 16, 2005 (Gong2006Sang, 219) / [2] Supreme Court Decision 2011Da79258 Decided November 29, 2012 (Gong2013Sang, 17) Supreme Court Decision 2014Da73602 Decided March 26, 2015

Marone 13, 2007

Korea Deposit Insurance Corporation and one other (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

Suwon District Court Decision 2012Na40483 decided June 12, 2013

All the judgment below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to Article 24(2) of the former Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter “former Act”), a manager shall appoint by the resolution of the managing body’s meeting. Article 38(1) of the former Act provides that “The intention of the managing body’s meeting shall be decided by a majority of sectional owners and voting rights, unless otherwise provided in this Act or by regulations.” Thus, barring any special circumstance, the voting rights of the managing body’s meeting to appoint the manager must be exercised by the managing body’s sectional owner. Here, a sectional owner is a person who has generally acquired sectional ownership (registered as a sectional owner on the register) (see, e.g., Supreme Court Order 2004Ma515, Dec. 16, 2005).

Meanwhile, the exercise of voting rights by a sectional owner for the appointment of a manager may be done by an agent (Article 38(2) of the former Act). Since the former Act does not impose any restriction on the method of exercising voting rights by an agent, it does not necessarily require delegation of voting rights or granting of proxy rights individually and specifically (see Supreme Court Decision 2011Da79258, Nov. 29, 201). It is also possible to impliedly and explicitly (see Supreme Court Decision 2014Da73602, Mar. 26, 2015).

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

A. On May 12, 2005, N.S., Ltd., Ltd. (hereinafter “N.S.”) had a real estate security trust agreement on shopping mall (hereinafter “instant trust agreement”) with the Korea Land Trust Co., Ltd. (hereinafter “Korea Land Trust”) and completed the registration of ownership transfer on May 13, 2005.

B. On May 4, 2005, Swiftships entered into an agreement with the Plaintiff on the delegation of management of the said shopping mall (hereinafter “instant management agreement”) to the Plaintiff for the purpose of facilitating the sale of the said shopping mall, and upon entering into the instant trust agreement with the Korea Land Trust, the Plaintiff entered into an agreement with the Korea Land Trust to: (a) that “The truster is de facto continuing possession, use, preservation, repair, etc. of the trusted real estate; and (b) bear all the expenses incurred therein” (Article 9(1); hereinafter “instant agreement”).

C. On September 11, 2005, at the inaugural general meeting of the management body on the shopping mall held (hereinafter “instant general meeting”), all sectional owners, who participated in the instant general meeting, decided to appoint Switzerland as the administrator of the shopping mall. The minutes of the instant general meeting include that the Nins, the truster of the shopping mall, who is not the trustee of the Korea Land Trust, is the trustee of the shopping mall unsold in lots, exercising his/her voting right.

D. Korea’s land trust did not raise any objection to the appointment of NAS as a custodian before and after the general meeting of this case was held. During the management of the shopping mall for about two years by the Plaintiff according to the instant management contract, Korea’s land trust, etc., the trustee, did not raise any objection against the Plaintiff’s management act.

3. We examine the above facts in light of the legal principles as seen earlier.

It was necessary to manage the shopping mall under his responsibility until the completion of all the shopping mall sales. According to the instant agreement, Swiftships has the authority to perform actual management of the shopping mall, and all the expenses, including management expenses, are fully borne. Therefore, it is reasonable to deem that there was a mutual agreement between the Korean Land Trust and NAs with regard to the management of the shopping mall under his/her responsibility until NAstan, who is a seller, has completed all the shopping mall sales.

In light of the fact that the Korea Land Trust, a trustee of an unsold shopping mall, did not raise any objection to the appointment of the Netherlands as a trustee, and the Plaintiff did not raise any objection to the management agreement of this case without any objection, and the Plaintiff’s exercise of voting rights on the appointment of a trustee on behalf of the Korea Land Trust is difficult to be deemed as going against the intention of the Korea Land Trust. In addition, there is sufficient room to deem that the Korea Land Trust, a trustee of an unsold shopping mall, had impliedly delegated the power on the exercise of voting rights to the resolution of appointing the Netherlands as a trustee at the management body meeting.

Nevertheless, the lower court rejected the Plaintiff’s claim for management expenses based on the management authority based on the instant management agreement between Switzerland and the Plaintiff on the ground that it is difficult to view that Korea’s land trust delegated the voting rights to the agenda for the appointment of a manager of the instant general meeting to NAS, a truster, and that NAS was not legally appointed as a manager of the shopping mall. In so doing, the lower court erred by misapprehending the legal doctrine on the delegation of voting rights by the management body meeting, which affected the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

Meanwhile, according to the records, each bankruptcy is declared against Defendant Promotion Savings Bank Co., Ltd. and Gyeonggi Savings Bank Co., Ltd. after the closure of pleadings in the court below, and the bankruptcy procedure has commenced. Accordingly, the court below after remanding the case, pointed out that it is necessary to proceed with the legal proceedings by considering whether the Plaintiff’s claim for the instant management expense against the above Savings Bank constitutes bankruptcy claim.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Shin (Presiding Justice)