都給契約에서의 所有權歸屬에 관한 硏究

• 영문명: A Study on the Ownership in Contract For Work
• 발행기관: 한국재산법학회
• 저자명: 최창열(Chang-Ryeol Choi)
• 간행물 정보: 『재산법연구』재산법연구 제20권 제2호, 171~207쪽, 전체 37쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.12.01

영문 초록

To whom of a contractor and a contractee should the title of an object completed by a contract be reverted? This essay explored that a contract is purported to pay the price for the completion of a work. so the completely manufactured object should be finally reverted to the contractor, but if it is initially reverted to the contractor. or it is first reverted to the contractee, then transferred to the contractor. On this matter, the existing arguments have come to an agreement that if the contractor provides the whole or part of the materials, the title is reverted to him, or her, but they have diverse opinions about the matter of the title reversion when the contractee supplies the whole or part of major materials for construction. Such problem is that occurring only in Japan and Korea where a building is recognized as a separate object of title from a land. Since in the continental countries such as Germany and France succeeding to Roman tradition, 「Supercies solo cedit」, as the title of the building is reverted to the land owner, so it is reverted to the contractor all the time. As a result of looking at this, to the title reversion of a contracted building, the jurisprudence like processing, or coincidence in the law of reality, rather than contractual jurisprudence should be applied. Also it is deemed necessary to revert the building title to the contractee from the viewpoint of the law of a security since a lien, because only the protest of simultaneous performance, claim of mortgage settlement are not enough for the contractee to secure his credit of construction price. And it is maintained that the contract is entered into for the contractor, so the title is naturally reverted to the contractor, but it is found that our country adopting formalism, distinctly fro Japan adopting intentionalism on the change of reality can not make only the party's intention the basis of reality reversion. In addition, the parties of a dispute can be the contractee's creditor versus the contractor. the contractor's creditor versus the contractee, the contractee's creditor versus the contractor, not the contractor versus the contractee. In this case, if the title of a contracted building is primitively reverted to the contractor. the contractee's creditor is deprived of even the chance of collecting the credit of contract construction. No doubt in need of protecting the contractor's creditor, its protection can be complemented by the parties' special committment promising to revert the title of the contracted building to the contractor as recognized at a leading case. In conclusion. it should be considered that the contractor achieves his contractual goal when the title in case of the contractee providing the whole or part of major materials is temporarily reverted to the contractee from the time of completion till the time of the contractee receiving all credit of construction price, and it is transferred and delivered to the contractor by the registration by the Article186, the Civil Code.

목차

1. 序言

2. 建築者給契約의 特性

3. 完成建物의 所有權歸屬

4. 建築中 建物에 대한 제3자의 공사와 所有權歸屬

5. 下都給에서의 所有權 歸屬

6. 結語