In a case where Gap et al., who divided ownership of an apartment building, agreed on the contents that " Eul, a housing reconstruction and improvement project association and a virtual underground parking lot for an apartment building, regardless of the designated number of houses, shall be used for official use," but the council of occupants' representatives of the reconstructed apartment building's apartment complex Byung et al. obstructed the use of parking lots by Gap and commercial building tenants, and Gap et al. filed a complaint against Byung's council of occupants' representatives against Byung, the case holding that Byung's council of occupants' representatives shall not be obliged to perform any act that interferes with Gap et al.'s and lessees' use of parking lots for commuting to or visiting the commercial building, or by visitors to the commercial building.

A, etc. who divided the shopping district of an apartment, agreed on the contents that “A house reconstruction and improvement project association and a virtual underground parking lot shall be used for public use, irrespective of the designated number of houses,” but the council of occupants’ representatives of the reconstructed apartment building could interfere with the use of parking lots by A and commercial tenants who purchased a commercial building newly constructed in the apartment complex, and as A et al. sought a prohibition of interference with the use of the underground parking lot against C's council of occupants' representatives.

On the ground that the underground parking lot is a common area of commercial buildings and apartment houses, the above underground parking lot belongs to the co-ownership of the entire members of the commercial buildings and apartment owners pursuant to Articles 10 and 11 of the Act on the Ownership and Management of Aggregate Buildings, and as such, Gap, etc., a sectional owner of the commercial building, etc., has the right to use the underground parking lot according to the purpose of use, and the lessee and the commercial visitors who entered into a lease contract with Gap, etc., can use the underground parking lot according to the purpose of use of the underground parking lot, the case holding that Byung's council of occupants' representatives shall not be obliged to perform any act that obstructs the parking of passenger cars, trucks, and wheel cars used by the lessees, etc.,

Articles 10 and 11 of the Act on the Ownership and Management of Aggregate Buildings, Articles 263 and 265 of the Civil Act

Plaintiff 1 and two others (Attorney Hong Young-young, Counsel for the plaintiff-appellant)

The council of occupants' representatives, et al. (Law Firm A&C, Attorneys Gu Chungcheongnam-gu et al., Counsel for the plaintiff-appellant)

May 17, 2018

1. 피고 테헤란 아이파크 입주자대표회의는 서울 강남구 (주소 생략) 소재 테헤란 아이파크 아파트 단지 내 상가동 ○, △호 소유자 원고 1, 같은 동 □, ◇호 소유자 원고 2, 같은 동 ☆호 소유자 원고 3 및 원고들로부터 위 각 상가를 임차한 사람이 위 각 상가에 출퇴근 또는 방문하기 위하여 사용하거나, 위 각 상가를 방문하는 사람이 사용하는 승용자동차, 화물자동차, 이륜차에 대하여 위 아파트 지하주차장에 주차하는 것을 방해하는 일체의 행동을 하여서는 아니 된다.

2. The plaintiffs' remaining claims against the council of occupants' representatives in The Hague and the claims against the defendant Seongdong Apartment Housing Reconstruction Association are dismissed in entirety.

3. Of the costs of lawsuit, 10% of the portion arising between the plaintiffs and the council of occupants' representatives in the defendant Jaeak-gu, and the remainder are borne by the plaintiffs, respectively, and the part arising between the plaintiffs and the defendant Seongdong apartment house reconstruction and rearrangement project association is borne by the plaintiffs.

1. On the other hand, the council of occupants' representatives (hereinafter referred to as "the defendant council of occupants' representatives") around Defendant Chye, as indicated in paragraph (1) of this order, remove sign signs as indicated in paragraph (1) of this order and sign signs as indicated in paragraph (1) of the attached Table attached to 1 (G rate 1), which are attached to 2 (G rate 2) entrance of the above apartment parking lot, attached to the right blocking machine of the above apartment 2 (G rate 2), sign signs as indicated in paragraph (3) of the attached Table attached to the above entrance 2 (G rate 2), and sign signs as indicated in paragraph (4) of the attached Table attached to the above entrance 2 (G rate 2) on the right wall of the above entrance. In the event of violation of paragraph (1) of this order, the plaintiff who is the owner of the commercial building who was interfered with parking, is paid an amount of money in proportion to KRW 100,000 per day per violation day.

2. Preliminaryly, Defendant Ssung Apartment Housing Reconstruction Project Association (hereinafter referred to as “Defendant Association”) is:

A. The Plaintiff 1 paid the amount of KRW 12,03,00 per annum to Plaintiff 1 at the rate of 15% per annum from the day following the delivery of a copy of the instant complaint to the day of complete payment. From August 1, 2017 to August 1, 2017, Plaintiff 1 paid the amount calculated at the rate of KRW 157,500 per month per commercial building until Plaintiff 1 loses the ownership of the commercial building ○, commercial building, and △△, located in the Gangnam-gu apartment complex located in Gangnam-gu Seoul Metropolitan Government ( Address omitted);

나. 원고 2에게 금 12,033,000원 및 이에 대하여 이 사건 소장 부본 송달 다음 날부터 다 갚는 날까지 연 15%의 비율로 계산한 돈을 지급하고, 2017. 8. 1.부터 원고 2가 서울 강남구 (주소 생략) 소재 테헤란 아이파크 아파트 단지 내 상가동 □, ◇호의 소유권을 상실할 때까지 상가 1호당 월 157,500원의 비율로 계산한 돈을 지급하고,

다. 원고 3에게 금 6,016,500원 및 이에 대하여 이 사건 소장 부본 송달 다음 날부터 다 갚는 날까지 연 15%의 비율로 계산한 돈을 지급하고, 2017. 8. 1.부터 원고 3이 서울 강남구 (주소 생략) 소재 테헤란 아이파크 아파트 단지 내 상가동 ☆호의 소유권을 상실할 때까지 월 157,500원의 비율로 계산한 돈을 지급하라.

1. Basic facts

The following facts do not conflict between the parties, or may be acknowledged by considering the whole purport of the pleadings as a whole or significant result of the fact inquiry to the head of Gangnam-gu Office of this Court, and each fact inquiry to the head of Gangnam-gu Office of this Court.

(a) Relationship between the Parties

The plaintiffs are those who have divided ownership of the commercial buildings of Seongdong-gu Seoul ( Address omitted) and 2 lots of land, and the defendant union is the implementer of the re-building project of Seongdong-gu, and the defendant council of occupants' representatives is the council of occupants' representatives of the plaintiff's representatives of the Gu which was reconstructed in the above [Road Name Address: Gangnam-gu Seoul (Road Name Address omitted)].

B. Agreement between the plaintiffs and the defendant association

1) The Plaintiffs filed a lawsuit claiming the cancellation of the management and disposal plan against the Defendant Union, which was implementing the re-building improvement project for the Seongdong Apartment Apartment, pursuant to the Seoul Administrative Court 201Guhap8369, but withdrawn the said lawsuit by agreement with the Defendant Union on January 2012, the following details.

On January 31, 2012, the Plaintiffs received a certain amount of money from the Defendant Cooperative, and at the same time, carry out the procedures for the registration of ownership transfer for each real estate listed in the separate sheet to the Defendant Cooperative by January 31, 2012, and deliver each of the above real estate to the Defendant Cooperative without any restrictions on its use and profit. 6. After the Plaintiffs and the Defendant Cooperative fully carry out their respective obligations under paragraphs (1) through (5), the Plaintiffs and the Defendant Cooperative shall submit to the Defendant Cooperative a written consent for the change of the project execution plan accompanied by a certificate of personal seal impression, a written consent for the establishment of an association and a written application for sale in accordance with the change of the project plan by January 31, 2012.

2) The Plaintiffs agreed with the Defendant Union on February 2012, 2012, that “A temporary underground parking lot shall be used for official use, irrespective of the number of designated vehicles.”

C. Status of the plaintiffs' occupancy and use of parking lots

1) The instant apartment building was completed on January 24, 2014. The Plaintiffs: (a) purchased a shop newly built in the instant apartment complex (hereinafter “instant shop”) as follows; and (b) occupied each shop sold in lots around February 2014.

본문내 포함된 표 상가 호수 ○호 △호 □호 ◇호 ☆호 수분양자 원고 1 원고 2 원고 3 면적 28.39㎡ 33.10㎡ 24.48㎡ 24.72㎡ 35.67㎡

2) The parking lot of the instant apartment (hereinafter “instant underground parking lot”) is installed on the ground of the instant apartment and commercial building site in a total of 589 pages, and is owned by the apartment and commercial building. In order to enter the said parking lot, one of the two entrances installed between the building in the commercial building should pass through. In this case, the blocking machine installed at the entrance is open only when the parking gate issued in advance by the Defendant’s council of occupants’ representatives is attached to the vehicle or the security guards’ permission is obtained. The Defendant’s council of occupants’ representatives installed a sign sign stating that only the vehicles registered in advance in two entrances can enter the said underground parking lot as shown in the attached Table.

3) Around June 2015, the Defendant’s council of occupants’ representatives restricts the number of parking permits for the total number of 27 rooms of the instant apartment building as 7, and then expands the number from November 1, 2015 to 10. From August 10, 2016, the Defendant’s council of occupants’ representatives limits the passage of parking lots for the shop occupants and visitors by permitting the parking of 70,000 parking again. Accordingly, the owners and lessees of commercial buildings use 7 parking lots each month by drawing up 7 parking rooms and dividing the parking lots provided by the said Defendant. On the other hand, security guards refuse the entry of the owners or lessees of commercial buildings without parking attitudes in accordance with the above Defendant’s policies, and thus, they are unable to use the instant underground parking lot. On the other hand, the instant apartment occupants have been granted from one to three parking lots per household to use the underground parking lot freely.

D. Acquisition of divided ownership by the plaintiffs

The plaintiffs completed each registration of preservation of ownership of commercial buildings sold in lots as described in the above C. 1, February 13, 2018.

2. Summary of the plaintiffs' assertion

A. From February 2014, the Plaintiffs acquired the right to use the instant underground parking lot from around that time since they occupied and used the instant commercial building and paid the property tax. Meanwhile, each registration of preservation of ownership was completed for each subparagraph of the commercial building that was sold on February 13, 2018 and acquired ownership. Based on the above usage right or ownership, the Plaintiffs may use the instant underground parking lot.

B. Nevertheless, the defendant's council of occupants' representatives interferes with the use of parking lots by the plaintiffs and commercial tenants, and thus, the defendant's council of occupants' representatives primarily seek prohibition of such interference.

C. Preliminaryly, the Defendant Cooperative promised to use the instant apartment parking lot for official use in the course of promoting the reconstruction of the Seongdong Apartment, and thus, it bears the obligation of the Plaintiffs to allow the use of the instant apartment parking lot. The Defendant Cooperative has failed to perform this obligation from February 2014 to the present date. Therefore, if the claim against the Defendant’s council of occupants’ representatives is not accepted, the Defendant Cooperative is liable to pay the Plaintiffs the amount stated in paragraph (2) of the purport of the claim corresponding to the charges for the neighboring parking lot paid by the Plaintiffs, as compensation for the nonperformance of the obligation, which the Plaintiffs did not receive.

3. Request to the defendant council of occupants' representatives;

A. Part of the claim for prohibition of parking obstruction

1) Determination on the cause of the claim

According to the above facts, it is recognized that the instant underground parking lot is the common use area of the instant commercial building and apartment. Pursuant to Articles 10 and 11 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Aggregate Buildings Act”), the instant underground parking lot belongs to the co-ownership of all the instant commercial building and apartment owners. Accordingly, the Plaintiffs, a sectional owner of a commercial building, are entitled to use the instant underground parking lot according to its intended use, and the lessee of the commercial building and the commercial visitors, who concluded a lease contract with the Plaintiffs based on such rights, may also use the underground parking lot for the purpose of use of the underground parking lot. Therefore, the Defendant’s council of occupants’ representatives is obliged not to perform any act interfering with the parking of passenger cars, truck wheels, and the instant commercial building used by the Plaintiffs and lessees for commuting or visiting the commercial building owned or leased by them, barring any special circumstances.

2) Determination on the Defendant’s council of occupants’ representatives

가) 위 피고는, 공용부분인 지하주차장의 관리에 관한 사항은 공유자 지분의 과반수로써 결정하는 것이므로 이 사건 아파트의 경우 지하주차장의 사용, 관리에 대해서는 피고 입주자대표회의의 결정에 따라야 하고, 피고 입주자대표회의는 이미 이 사건 아파트의 상가 면적에 따른 정당한 주차면적인 7면(≒ 총 주차면적 589면 × 총 상가면적 210.057㎡ ÷ 총 사업시행면적 18,549㎡)을 상가에 제공하고 있으므로 원고들의 정당한 주차장 사용을 방해한 적이 없다고 주장한다.

Article 263 of the Civil Act provides that each co-owner may use all co-owner's share in common. Article 265 of the same Act provides that matters concerning the management of co-owned property shall be determined by a majority of co-owners' share in common property. However, since common areas of an aggregate building are used as a whole with each section for exclusive use in structure or use, it is not reasonable to limit its use according to the share ratio, and Article 10 (2) of the Aggregate Buildings Act provides that the common areas of an aggregate building shall be governed by Articles 11 through 18 of the same Act with respect to the common areas of an aggregate building, so the provisions of the Civil Act on co-ownership shall not apply. Furthermore, unlike the provisions of the Civil Act, Article 11 of the Aggregate Buildings Act provides that each co-owner may use the common areas regardless of the share ratio for its use. According to Article 10 (2) of the same Act, the above Article 11 of the Act provides that the common areas of an aggregate building shall also be prohibited or restricted according to the share ratio for the co-owner's.

However, it is possible in light of the purport of Article 11 of the Act on the Ownership and Management of Aggregate Buildings, which limits the co-owner's right to use within a reasonable scope of use, to the extent of "use according to the use". Under Article 16 (1) and (3) of the same Act, the method of use of the common area may be determined by a resolution of the managing body's general meeting, unless otherwise specified by the regulations, but it is judged that it violates the purpose of use of the common

We look at this case. There is no evidence to prove that the management body meeting of the instant commercial building and apartment building has made a resolution restricting the plaintiffs' use of the instant underground parking lot or to establish regulations, and there is no ground to conclude that the resolution of the defendant's council of occupants' representatives composed of the occupants of the instant apartment building has an effect on the plaintiffs, who are sectional owners. Even if the resolution was passed at the management body meeting, the resolution that only seven parking lots were provided at the 27 units of the entire commercial building, or such regulations were enacted, it cannot be deemed to be within a reasonable scope as it seriously infringes on the right to use common areas of the commercial building owners, and thus, it is deemed null and void against Articles 10 and 11

B) The above defendant asserts that, because the owner of a commercial building, such as the plaintiffs, did not pay monthly user fees and management expenses according to the parking area allocated to him/her properly, the plaintiffs' parking was properly restricted. However, even if the plaintiffs bear certain user fees and management expenses to use the above underground parking lot in this case, the above defendant cannot interfere with the plaintiffs' use of the underground parking lot itself on the ground of such obligations, even if the above defendant sought performance of the above obligations to the plaintiffs. This part of the defendant's assertion

B. Parts of the claim for removal

The content of each sign on the attached list is that an external vehicle, which has not completed the registration in advance, obtained an access certificate from the guard room, and entered the instant underground parking lot itself does not constitute an act of interference with parking for the plaintiffs. This part of the plaintiffs' assertion is without merit.

C. Part of the indirect compulsory performance claim

1) The compulsory execution against a liability for an omission, which is an incidental obligation, can be conducted only indirectly, and the decision of indirect compulsory performance is a general principle to order a certain amount of compensation when a debtor fails to perform his/her obligation through a necessary hearing with respect to the debtor upon the obligee’s separate request after the enforcement title was established in the judgment procedure. Therefore, in the judgment procedure to establish an enforcement title with respect to a liability for an omission, indirect compulsory performance is possible in preparation for a case where the debtor fails to perform his/her obligation, even if the enforcement title ordering the obligation for an omission is established at the time of the closing of argument in the litigation procedure concerning the obligation for an omission, it is probable that the debtor may violate it within a short period, and in addition, in the said judgment procedure, the pertinent amount of compensation ordered pursuant to Article 261 of the Civil Execution Act can be calculated (see, e.g., Supreme Court Decisions 93Da40614, Apr. 12, 196; 2011Da31225, May 29, 2014).

2) It is difficult to readily conclude that the Defendant’s council of occupants’ representatives did not respect the judgment rendered even after this judgment, and committed an act of infringement against the Plaintiffs. However, in light of the fact that if the Defendant committed an act of infringement in the future, it is possible for the Plaintiffs to separately file an application for indirect compulsory performance, it is difficult to deem that there is a need to immediately make the said Defendant an indirect compulsory performance, and there is no other evidence to acknowledge this.

4. Claim against the defendant union;

We examine the claim against the conjunctive Defendant Cooperative. The fact that the Defendant Cooperative agreed with the Plaintiffs that “the parking lot for apartment is used for official use irrespective of the number of designated vehicles” in the course of promoting the reconstruction of Seongdong Apartments is as seen earlier. However, the following circumstances are acknowledged: ① the Plaintiffs’ failure to enter the instant underground parking lot is not the Defendant Cooperative but the parking obstruction of the council of occupants’ representatives; ② the content of the agreement is merely a declaration that the Defendant Cooperative would use the instant underground parking lot at the same time, and it is not clear whether the Defendant Cooperative would be liable to compensate for damages when it obstructs the use of the parking lot due to the act of the principal agent other than the Defendant Cooperative. In view of the fact that the evidence submitted by the Plaintiffs alone is insufficient to acknowledge that the Defendant Cooperative would be liable to compensate for the nonperformance of the obligation regarding the act of parking obstruction of the council of occupants’ representatives, and there

5. Conclusion

Therefore, the plaintiffs' claims against the defendant's council of occupants' representatives against the defendant are accepted within the above scope of recognition, and the remaining claims against the defendant's council of occupants' representatives and claims against the defendant's association are dismissed as it is without merit. It is so decided

[Separate] List: omitted

Judges Kim Jong-hee (Presiding Judge)