A few years ago the Korean Supreme Court decided in a majority opinion that only the section of the management fee applicable to commonly owned property in that unit has to be taken over. But the minority opinion of the Court at that time decided that none of the management fee should be taken over by the new owner of the apartment unit. The majority opinion of the Court should be rejected for the following reasons: (1) The Korean Multi-Unit Act(MUBA)§ 28 clause 3 regulates that the right of a non-unit owner (e.g. tenant) can not be trespassed by the management rules of an apartment. Also, the above Act § 42 c.1 regulates that the management rules of an apartment and the resolution of the management body’s assembly may have an effect on the special successor (new owner) of prior owner of apartment unit. Apartment management rules § 13 clause 1 in this case regulates that the management subject of an apartment can exert claims for management fees, utility fees, and the saving money for special repairs etc. against the successor who succeeds to the status of the prior owner. MUBA § 28 clause 3 states a general rule of principle. On the other hand, § 42 c.1 is a specific rule of exception. Therefore, according to the statutory interpretation principle that a specific rule should be construed strictly, it is desirable that we should interpret it cautiously. (2) MUBA §18 regulates that a co-owner of commonly owned property can exert his claim to the commonly owned property of another co-owner against the special successor of that co-owner. The majority opinion asserted in the above case that on the basis of MUBA §18, the unpaid management fee which succeeds to the new owner, is confined to the management fee of commonly owned property. But MUBA §18 could not be adopted as the reason that the new owner should assume the partial amount of the unpaid management fee. (3) MUBA §27 clause 1 regulates that if the managing body of an apartment could not pay an owner s debts with his own assets, the owner of that apartment unit becomes liable for the uncovered expense to the managing body according to the ratio of MUBA §12. The special successor of an apartment unit, the new owner, should therefore bear the debts of the managing body of apartment before his acquisition of ownership. (4) In the case that the new owner has paid the outstanding management fee instead of the prior owner, (although the majority opinion held that a request for repayment is possible in principle), this measure will prove difficult or even impossible for the new owner.
Ⅱ. 심급별 법적 판단