???? ???? ?? ???? ?? ¨D´ó·¨Ôº 1996. 8. 23. Ðû¸æ, 94?27199 ÅЛQ(¼¯44-2, Ãñ97)¨D (On the Lessee's Violation of Restrictions in the By-laws of the Scheme (Note on Supreme Court Decision 94Da27199 Decided August 23, 1996))

????? ??? ???? ??? ??? ??(??????? ????)? ?? ????? ???? ???? ????? ?? ??? ??? ?? ?????? ?????, ??? ??? ??? ??? ???? ?? ??? ?? ?? ?????, ???? ??? ??? ???? ??? ???? ?? ?? ?????? ??? ?? ??? ?? ? ???? ????.
????? ??????? ??? ???? ??? ? ?? ?????? ????? ??? ??? ??? ??? ???? ??? ???, ?????? ?? ??? ??? ????? ??? ??? ???(??? ?? ??) ?? ?????? ?? ???? ?????? ?????.
? ???? ?? ????? ?? ??? ??? ??? ?? ?(¢ò. 1.) ??? ??? ????? ?????? ??? ?? ?????(¢ò. 2). ?????? ????? ????? ???? ??? ? ???, ??? ???? ??? ????? ? ? ????? ??? ???? ????, ? ? ? ??? ??? ??? ??? ??? ????(¢ò. 3).
?? ???? ?? ?? ??? ??? ???? ?? ?????? ????? ?43? ?? ?45?? ??? ??? ?? ?214?? ?? ?????????? ???, ? ????? ????? ?261?? ????? ??? ??, ??????? ???? ?? ??? ??? ???. ???? ??????? ?? ??? ???? ??? ???? ??? ???? ??? ???? ????? ??? ????. ??? ????? ??? ?? ???? ???? ???? ááÕß? ????, ??? ???? ??? ? ?? ??? ???? ????, ?? ???????? ???? ?? ????? ???? ??? ???? ???? ???? ??? ?????? ???(?? ?567?, ?575?)(?? ¢ò. 4).
??? ? ????? ????? ?? ?214?? ???????? ? ?? ????? ???? ???? ?? ???? ????(¢ò. 5), ?????? ? ?? ????? ?????(¢ó).

When the by-laws determine the destination of the multi-unit buildings and regulate the use and enjoyment of the scheme, some problems might arise: are these rules(usually concerning the allowance or non-allowance of professional activities in residential schemes and restrictions on competition in non-residential schemes) also applicable to persons like lessees to whom occupation of the unit has been delegated?; which is applicable among conflicting by-laws and lease contracts?; and which remedies can other owners resort to against a violating lessee?The commented decision of the Korean Supreme Court affirmed that the association of the case, though to which not only owners but some lessees belong, is the management association subject to the Korean Act on the Ownership and Management of Aggregate Buildings(hierafter ¡°Act¡±) and, as reversing the decision of the court below, that the application for injunction is with merit.
Here have been scrutinized the theoretical grounds and practical types of such restrictions(¢ò. 1. & 2). A comparted owner is in princple free to lease her/his unit; a restriction, if any, contained in the by-laws shall be applicable to the lessee as well as the comparted owner(and her/his successor)(¢ò. 3).
Other owners may resort to actio negatoria(art. 214 of the Korean Civil Code), in addition to other special remedies of the Act(art. 43 to art. 45), against the violating lessees. The form of its specific performance should be found in art. 261(Indirect Compulsory Performance) of the Korean Civil Execution Act. The obligations to be burdened on the lessees shall be seen to remain as the obligation of omission. The risk of accidential discrepancies between the by-laws and lease contracts should be shouldered by the lessor, to whom the lessee may resort to art. 567, art. 575 of the Korean Civil Code(so far ¢ò. 4).
Lastly, it is pointed out that art. 21 4 of the Korean Civil Code, the direct ground of injuction, has not been mentioned in the commented case(¢ò. 5), proposing several practical tips for contracting(¢ó).