집합건물 관리단의 공용부분 무단점유자에 대한 시설물철거 및 그 대지인도청구에 관하여 관리단집회의 결의가 필요한지 여부 - 대법원 2022. 9. 29. 선고 2021다292425 판결 -

Abstract

On September 29, 2022, the Supreme Court of Korea ruled that the managing body of condominium buildings may file a lawsuit against an unauthorized occupant of the section for common use or site seeking the return of unjust enrichment as a managerial act according to a resolution at the managing body’s meeting or rules of the managing body. It affirmed the judgment of the Court of Appeal which provided that a lawsuit seeking the demolition of facilities and return of the site against unauthorized occupants of the section for common use of condominium buildings is an act of preservation and thereby does not require a resolution at the managing body’s meeting, based on Articles 16, 23, 25, and 26 of the 「Act On Ownership And Management Of Condominium Buildings」(hereinafter referred to as the ‘Condominium Buildings Act’). This paper analyzes whether a lawsuit seeking the demolition of facilities and return of the site against an unauthorized occupant of the section for common use of condominium buildings constitutes an act of preservation as a part of the management body’s business and whether a resolution at the managing body’s meeting is necessary to file the lawsuit. The condominium buildings’ managing body is an organization established for the purpose of carrying out projects related to the management of buildings, their sites and ancillary facilities (Article 23, Paragraph 1 of the Condominium Buildings Act). The Condominium Buildings Act stipulates that matters concerning the change and management of sections for common use should be decided by a resolution at the managing body’s meeting (Articles 15, 15-2, 16, and 19) and that the preservation thereof may be done by each co-owner (Article 16, paragraph 1). Acts of preservation to prevent loss or damage of the section for common use and to maintain the current state and value fall under the managing body's scope of business and shall be determined by a resolution at the managing body's ordinary meeting in accordance with the main text of Article 16, Paragraph 1 of the Condominium Buildings Act. Meanwhile, Article 25, Paragraph 1 of the Condominium Buildings Act lists the act of preservation as one of the authority and obligations of the manager. The manager is the representative of the managing body and the executor of the duties thereof (Article 24, Paragraph 1) but does not have an independent legal status. Therefore, acts of preservation by the manager should be limited to de facto actions to prevent loss or damage of the section for common use and to maintain its current state and value. That is, the provision cannot be interpreted to provide the basis that acts of preservation can be performed by the managing body without a resolution at the managing body’s meeting. A lawsuit seeking the removal of facilities and return of the site against an unauthorized occupant of the section for common use of condominium buildings is an act to prevent the loss or damage and to maintain the current state and value of the section for common use and its site and thus constitutes an act of preservation which belongs to the managing body’s business and falls under a matter of management of the section for common use, provided by the Article 16, Paragraph 1 of the Condominium Buildings Act. Therefore, as the provision requires, matters of management of the section of common use – including filing a lawsuit - must be determined by a resolution at the managing body’s meeting.