집합건물 공용부분 무단사용자에 대한 관리단의 부당이득반환청구 가부- 대법원 2020. 5. 21. 선고 2017다220744 전원합의체 판결 -

Abstract

The Korean Supreme Court issued an en banc decision 2017Da220744(hereinafter “the en banc decision”). The issue is that whether a managing body of condominium buildings can claim a right to unjust enrichment in case a person(hereinafter “the interferer”) exclusively occupies and uses the section for common use without any justifiable reasons. The conclusion of this study on the en banc decision can be summarized as follows: Firstly, in case the interferer exclusively occupies and uses the owner’s asset, the use itself can be deemed as the damage prescribed in Article 741 of the Civil Act based on the assignment theory(Zuweisungsgehaltstheorie) since the exclusive legal interest is assigned to the owner. The Korean Supreme Court once issued decisions stating that even if the section for common use was occupied by a person without any justifiable reasons, the right to unjust enrichment should be denied since the section for common use cannot be leased or used and thus any damage such as losing the profit equivalent to rent, was not caused to the sectional owners. The en banc decision overruled this previous decisions and clarified the legal doctrine that if the interferer exclusively occupies and uses the section for common use without any justifiable grounds, the right to unjust enrichment shall be affirmed since whether the section may be leased or used should not be considered in determining the right to unjust enrichment. The en banc decision can be justified given the logical validity of the assignment theory(Zuweisungsgehaltstheorie). The en banc decision is meaningful in that the Korean Supreme Court positively adopted the legal approach which corresponds to the typology of unjust enrichment developed by German jurists(Trennungslehre). Secondly, a managing body of condominium buildings is empowered to perform the rights of the sectional owners necessary for common interests. Accordingly, it should be entitled to a right to unjust enrichment in a case the interferer exclusively occupies and uses the section for common use granting that the right to unjust enrichment originally pertains to the sectional owners. The en banc decision followed such conclusion and is expected to be influential as a precedent in that it interprets the power of the managing body more extensively.