구분소유자의 권리에 대한 단체법적 규율의 정당성과 그 한계 - 공용부분에 대한 방해배제청구를 중심으로 -

This study examines whether a resolution of the managing body of a condominium building is required when asserting the removal of obstruction claim in cases where the common areas of a condominium are being illegally used. To address this issue, this study compares the Supreme Court ruling rendered on March 12, 2024 (hereafter ‘2023Da240879’) with the Supreme Court ruling delivered on October 15, 2020 (hereafter ‘2019Da245822’). The 2023Da240879 held that asserting the removal of obstruction claim by a sectional owner constitutes a "management," thereby requiring a resolution from the managing body of a condominium building. In contrast, the 2019Da245822 held that such claims could be pursued directly without the need for a resolution. When some sectional owners illegally use the common areas, other sectional owners are, in principle, entitled to assert their removal of obstruction claim based on their co-ownership shares. However, as sectional owners are both owners and members of the condominium, the exercise of such rights is intricately tied to the interests of other owners. Therefore, given the nature of the condominium, the characteristics of rights related to common areas, the regulation of the authority of the managing body of a condominium building under the Act on Ownership and Management of Condominium Buildings, the promotion of autonomous dispute resolution, and the need for efficient conflict resolution, it is appropriate to classify the exercise of the removal of obstruction claim as "management" requiring a resolution from the managing body if there is a potential for conflict with the interests of other sectional owners. Nevertheless, requiring a resolution for every case of removal of obstruction claims may infringe upon the fundamental rights of minority sectional owners. As such, the limitations and exceptions to this entity-based regulattion must be considered. From a procedural perspective, if convening a resolution of the managing body proves difficult from a realistic point of view, removal of obstruction claims should be allowed without such a resolution. Substantively, if the interests of the claimant are significantly impacted or if the interests of the defendant lack worth of protection or are of markedly low significance, individual sectional owners should be permitted to assert removal of obstruction claims. By understanding the justification and limitations of entity-based regulation over sectional owners' exercise of rights, the differing conclusions of the 2023Da240879 and 2019Da245822 can be explained.