Plaintiff 1 and 20 others (Attorney Young-cheon, Counsel for the plaintiff-appellant)

Defendant’s representative council (Attorney Dong Hong-chul, Counsel for defendant-appellant)

May 14, 2009

Incheon District Court Decision 2007Gadan1861 Decided June 4, 2008

1. The defendants' appeal is dismissed.

2. The costs of appeal are assessed against the Defendants.

1. Purport of claim

According to the judgment of the court below, the defendant should not obstruct the plaintiffs from entering the above apartment complex any passenger car and bus used to work at the ○○○○-dong, Seocheon-gu, Seocheon-si, ○○○○-dong, 36427.5 square meters, which is connected with each point of the attached drawing Nos. 1, 2, 3, 4, and 1, or any part of the ground of the attached drawing Nos. 1, 2, 4, and 1, or the defendant shall not interfere with the defendant's entry into the above apartment complex, any passenger car and bus used to work at the ○○○-dong, Seocheon-gu, Seocheon-gu, Seocheon-si, and any car of the person visiting the above commercial building, which

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the following facts: Gap evidence 1, 2, 3, 5-1, 2, 6, 1, 2, 5-1, 6, 2-1, 2-2, 8-1 through 9, 9-9, 1 through 7, and the whole purport of the arguments as a result of each on-site inspection conducted by the court of first instance and the court of appeal.

A. On the ground of 36,427.5 square meters (hereinafter “the instant site”) in Seocheon-gu, Seocheon-gu, Seocheon-si, Nowon-gu, ○○○○○, 427.5 square meters (number omitted), ten households and 698 households and one commercial building (three floors and three commercial buildings of steel concrete sponsers; hereinafter “the instant commercial building”) were built and sold to the general public around July 1994.

B. The plaintiffs are divided owners of the commercial building of this case, and the defendant is an organization composed of representatives of occupants of the apartment building of this case.

C. The registration was completed for each of the 698 units of the instant apartment constructed on the instant site and each of the sections in the commercial building as the site ownership of a part of the co-ownership shares in the entire site of this case.

D. On November 2006, the Defendant decided to install a shuttleer at the entrance of the apartment of this case for the removal of illegal parking and the prevention of vehicle theft, etc. on or around January 2007, at the entrance of the apartment of this case, the visitors or unrelated persons of the commercial building of this case frequently used the parking lot in the apartment of this case. On or around January 2007, the Defendant installed two shuttles at the entrance of the door door (the entrance adjacent to the commercial building of this case) and the rear door door.

E. The vehicles that intend to enter the right entrance of the front door of the apartment complex of this case are leading to the door door, controlling access from the front door guard room and the simple guard room installed adjacent to the front door blockingr, and the commercial building of this case is located adjacent to the front door blockingr.

F. The business type of the commercial building of this case is video lending stores, real estate brokerage offices, refined landing points, seeds, Smarkets, Seodaemun-gu stores, Bobsing Institutes, Bobsing Institutes, Bobsing Institutes, Art Teaching Institutes, Taekwondo Institutes, Taekwondo grounds, churches, and bathing rooms. Since there is no parking space on the roads abutting on the commercial building of this case, visitors to the commercial building of this case using vehicles do not have a place to lawfully park unless they pass through a regular stop machine.

G. At present, the owners of the instant apartment and the sectional owners of the instant commercial building, including the Plaintiffs, have obtained and used the automatic card for access to the apartment of the automobile, and other persons visiting the instant apartment or the instant commercial building using the car have access to the apartment after obtaining confirmation of the simple guard room installed adjacent to the door-to-door blockingr.

H. In the simple guard room installed next to the fixed circuit of the apartment of this case, security guards work and enter the vehicle number of vehicles visiting apartment houses or commercial buildings, and pass through the blocking vehicle.

2. Determination as to the cause of action

In the case where the sectional owners of one building own the site of the building, each sectional owner has a legitimate right to use all the site of the building according to the purpose regardless of the share of co-ownership in the building site, unless there are special circumstances such as the existence of separate regulations. Such a legal principle applies likewise to the case where the sectional owners of several buildings constructed on one parcel of land co-ownership of the land (see Supreme Court Decision 93Da60144, Mar. 14, 1995). Since the registration was completed with regard to the co-ownership of part of co-ownership of all the site of the building of this case as a site of this case for the whole building constructed on the site of this case and for each section of the apartment building in the commercial building, the plaintiffs have the right to use all the site of this case as co-ownership of the building of this case as co-ownership of the sectional owners of the building of this case.

Therefore, the plaintiffs have the right to park in the apartment complex of this case for passenger cars and buses used to work at the place of business of the plaintiffs in the commercial building of this case and the persons visiting the above place of business, and the defendant is not obligated to prevent the above automobiles from entering and passing through the apartment complex of this case.

3. Judgment on the defendant's assertion

A. The defendant asserts that since the road of the apartment of this case is an incidental facility to the apartment of this case and the defendant has management right, the decision whether to install a blocking machine on the ground has the right to make a decision, and the plaintiffs should comply with the decision.

According to the management rules of the apartment of this case, it can be acknowledged that the defendant has the right to manage the road, one of the incidental facilities of this case. Meanwhile, in full view of the purport of the whole pleadings stated in Gap evidence No. 3, the defendant is composed only of the representatives of the apartment of this case and the apartment of this case among the apartment of this case constructed on the site of this case and the commercial buildings of this case. The management rules of the apartment of this case are limited to apartment of this case and the apartment of this case's apartment of this case's apartment and the apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment and the apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's apartment of this case's case's apartment of this case's apartment of this case's case's apartment of this case's case's apartment.

Therefore, the defendant's above assertion is not acceptable, since it is not obligated to comply with the management rules of the apartment of this case or the defendant's unilateral decision on the management of the apartment complex of this case.

B. The defendant asserts that the installation of the blocker in this case should be accepted from the perspective of equity even if the installation of the blocker in this case is somewhat obstruct the plaintiffs' business, and since the court of first instance rendered a judgment, the guard room is newly installed next to the door shuter, and the security guards work in 24-hour turns and immediately raise a stop to all persons visiting the commercial building in this case, the installation of the blocker in this case does not interfere with the passage of commercial users.

Therefore, in full view of the following circumstances recognized as above, the establishment of the instant blockingr is an act infringing the Plaintiffs’ right to use the road, which is the owner of the instant commercial building, and it cannot be said that the Plaintiffs are obliged to have access to the instant commercial building by using the instant blockingr, and the Defendant is entirely in charge of the instant blockingr; when visiting the instant commercial building by using a vehicle, there is a breaker at the entrance leading to the instant commercial building; the security guards are allowed to get off the blockingr after indicating the vehicle number; and the customer’s accessibility has a significant interest to the owners of the commercial building. In full view of the following circumstances, the installation of the instant blockingr is deemed an act infringing the Plaintiffs’ right to use the road, which is the owner of the instant commercial building; and there is no obligation to cause damages to the Plaintiffs.

4. Conclusion

Therefore, the plaintiffs' claim of this case is accepted on the grounds of its reasoning (the plaintiff's claim for the prohibition of interference with access by the plaintiff is selectively related to the plaintiff's claim for the prohibition of interference with access by the plaintiff and the plaintiff's claim for the removal of blocking shall not be judged additionally as to the latter). The judgment of the court of first instance is

[Attachment]

Judges Park Jin-hun (Presiding Judge)