집합건물의 대지권에 관한 연구

Abstract

Housing shortage has been aggravated because of limited territories, population surge, consequently dense population, and relatively confinedness of dwelling spaces. Due to these tendencies, collective buildings (i. e. apartments), or housing construction quantitatively and collectively in restricted dwelling sites, have been surged since 1960s, and nowadays the shapes of such collective buildings are changed into being enlarged and high-rise. However, collective buildings cause various environmental, social, and legal problems because scores or hundreds of families live together within limited sites. In order to such legal problems, the government established "the Act of Possession and Management of Collective Buildings" on April 10, 1984, to protect sectional owners who live in collective buildings and regulate the understanding of communal life, and the Act has been amended slightly in 1986, 1998, 2003, and 2005. Both new lawful conceptions including condominium of the substantive law of Korea, private and common used parts, site of a building, and site use right and site right registration as the adjective law and new forms of registration were introduce into the system of collective building, in order to enhance convenience of resident life of people and to simplify procedures of registration. However, the new system was different from the existing registration of usual buildings and has presented various confusions and problems in the processes both of interpretation and appliance of the act and of practical affairs of registration since its early enforcement, and measures for solving concrete problems have been provided through studies of scholars and those who are in charge and judicial cases of the Supreme Court and regulations and precedents of registration. In this context, the act on collective buildings shows considerable completion as the substantive law and adjective law, but unexpected problems have been revealed on the site use right and the site right as the peculiar properties of collective buildings due to the complex social and transactional circumstances. Such problems get more attentions and are sufficiently revealed in auction and registration that the general public are hard to understand because the two are entanglement of various regulations of the Civil Law including credits, liabilities, apportionments, and lease. The purpose of this study is to identify the theoretical structures of condominium, site use right, and sight right of collective buildings, to analyze problems shown in auction and registration, and to present improvements for them. As a results, three measures of improvement may be presented as follows. First, as for cases of auction in which the requisites for a partitioned building are insufficient and consequently compulsory execution is unavailable by remodeling and rebuilding of the building after construction and a permit on completion of partitioned building, it may not be only solution that the process of auction is cancelled merely by investigation of appraisers or enforcement officers on current conditions. Rather, a measure is presented that the price of the relevant subject of auction is calculated based on price per area unit after the whole real estate (or, the whole relevant floor) is assessed for amicable auction. This measure may both protect creditors, debtors, owners, bidders of auction and secure safety of transaction. Second, as for the problem whether the site occupation use right of buyers of partitioned buildings can be the site use right with legal rights on the site, it may be concluded that a seller of a building and the site use right permits the buyer as the owner of exclusive parts have the site occupation use right that is naturally admitted according to common idea. This measure can prevent both the socially indesirable results in which only exclusive parts are disposed without the site use right and the results in which the owners of the site who are in accessary position based on the theories on collective buildings are permitted of removal of the exclusive parts or the right of claims for the sale of partitioned buildings. Also, given the social-policy demands or the aims of the act of the act of collective buildings that the owner of the building should be preferredly protected than the owner of the site in the possession of a collective building, it is hard understand that the act prefers those with the site use right in execution of the right of claims for the sale though the act provide the site use right as an accessary right. Therefore, based on the proposition of a law, it is suggested that the owner of a partitioned building should be permitted of the right of claims for the sale of the site use right preferably. Third, a hypothec is established on a site even before construction of a collective building and then a hypothec on the partitioned building and the site right after the construction. However, it may be difficult to be solved when a hypothec on a partitioned building is executed and auctioned based on the existing interpretive method on laws. As for the proposition of a law, it is necessary to "the Act of Possession and Management of Collective Buildings" is revised: when the site right of several partitioned buildings in a site established of a hypothec, the hypothec on the site is considered to be changed into a common hypothec on the site right of the several partitioned buildings. Then, as in the cases of factories according to the Act of Hypothec on Factory and Mining Estates, anyone can require auction only when both the partitioned buildings and the site right are in aggregate, and the execution court should permit an auction in aggregate. As for the allotment of the selling account, the application of Para. 1 of Art. 368 of the Civil Law should be excluded even in non-simultaneous auction, and the sum of money that a person having a common hypothec can be alloted should be limited to the sum that can be alloted in simultaneous auction. This study has limitations in which concrete problems revealed in the registration and auction related to the site right and are identified and various measure for solution are presented. However, because a partitioned building and the site use right are separately disposed, it is difficult to solve problems when a problem occurs, due to complex modern society and newly-changed transactions. It may be necessary to research methods in which a partitioned building and the site use right cannot be separately disposed in principle based on the proposition of a law.