Comparison between Council of Occupants’ Representatives and Managing Body

Abstract

There are two perspectives regarding the right to manage an apartment complex. First, the management right of an apartment complex can be derived by collecting all divided ownership rights as an apartment building (a civil approach). Second, the power of the community or the state is partially divided and handed over to the apartment complex (public law approach). The Act on Ownership and Management of Condominium Buildings is a civil approach to the management of collective buildings. It addresses the issue of management of collective buildings as a concept corresponding to the authority of ownership. In this case, the managing body of the collective buildings becomes a management group comprising all the divided owners. In contrast, the Multi-Family Housing Management Act views the management of apartments as public law, considering that the government's right to manage apartments is entrusted to the council of occupants' representatives. Regarding the legal nature of the management group, there is a view that the management group has a cooperative nature. However, this group has rules and an organization, such as having a representative who is a decision-making body and an executive body. It is reasonable to identify it as an unincorporated association, in that it belongs to the management group. Regarding the legal nature of the council of occupants' representatives, there is a perspective that the council of occupants' representatives is the same as the management group, or it is merely an executive body of the management group. It is difficult to see that it is reasonable to compare the council of occupants' representatives, which is an organization with a strong character, on the same line. Considering the fact that the management authority of the council of occupants' representatives is only established under the Multi-Family Housing Management Act, it is reasonable to consider that the council of occupants' representatives corresponds to a representative organization created by representatives of occupants in a small group called a housing complex. The problem of claiming management expenses in arrears against a specific successor can be resolved by identifying the legal nature of management expenses of the management group and the council of occupants' representatives. Under the Act on Ownership and Management of Condominium Buildings, the right to collect management fees exercised by the management group corresponds to the claim of co-owners based on Article 266 of the Civil Act. Additionally, Article 18 of the Act on Ownership and Management of Condominium Buildings stipulates that the claim that a co-owner has against another co-owner in relation to a common part can be exercised against the special successor. One can claim payment of the management fee corresponding to the common part of the management fee in arrears. In contrast, the right to collect management fees exercised by the council of occupants' representatives under the Multi-Family Housing Management Act tends to have a strong public law character, considering the legal nature of the council of occupants' representatives. Therefore, it cannot be considered that the council of occupants' representatives exercises the right to collect management fees beyond the scope defined in the Multi-Family Housing Management Act. Additionally, as the Multi-Family Housing Management Act does not have the same provisions as Article 18 of the Act on Ownership and Management of Condominium Buildings, the council of occupants' representatives cannot be regarded as exercising the right to collect management fees beyond the scope defined in the Multi-Family Housing Management Act. It is reasonable to assume that one cannot claim payment of the management fee for arrears.