입주자대표회의의 방해배제청구권

• 영문명: Claim for Removal of the Council of Occupants' Representatives under the Housing Act
• 발행기관: 한국재산법학회
• 저자명: 이준현(Lee, Joon-Hyun)
• 간행물 정보: 『재산법연구』財産法硏究 第27卷 第2號, 1~36쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.10.30

영문 초록

A Council of Occupants' Representatives(COR) has authority and duties to manage the collective housing such as apartments, including incidental facilities, under the Housing Act. It can do everything to maintain and manage the apartment, in so far as it’s acts are not prohibited or restricted by the regulations. But it is difficult to answer the question, which it can demand the removal of disturbance from a possessor who takes illegally the common use section, the site or the annex facilities of the apartment. Because the right to demand the removal of disturbance is, generally speaking, derived from the ownership, and the COR is not an owner. The korean Supreme Court has not allowed the COR to exercise this right, similarly based on the perspective of the traditional ownership law(Supreme Court Decision 2003Da17774 Decided June 24, 2003). In the case, the Supreme Court has decided in bulk, without separating the claim for the removal of disturbance and the compensation of damages or the return of unjust enrichment. But it’s decision is not improper and inconsistent with another decisions of the Supreme Court, in which were judged independent the claim of defects repair and the compensation of damages. Therefore it is desirable to separate the claim of the COR for the removal of disturbance in the common use section of the apartment from the compensation of damages or the return of unjust enrichment. For it is also respected the perspective of the public law. The claim of the COR for the removal of disturbance contributes to the safety of the apartment, just like the claim of defects repair. Furthermore, to the COR it can be a methode for 'managing' the collective housing, to exercise the authority to demand the removal of disturbance in the common use section of the apartment. Finally, it is not disadvantageous to the sectional owner, to provide the COR with giving authority to demand the removal of disturbance. Because the same right of a sectional owner or all sectional owners does not become null and void by it.

목차

Ⅰ. 문제의 제기

Ⅱ. 이 문제에 대한 대법원의 태도: 대법원 2003.6.24. 선고 2003다17774 판결

Ⅲ. 공동주택의 하자에 대하여 입주자대표회의의손해배상청구권과 하자보수청구권의 분리.판단

Ⅳ. 대법원 2003.6.24. 선고 2003다17774 판결 비판과 사안ㆍ법령의 재검토

Ⅴ. 결론

키워드

방해배제청구권 입주자대표회의 주택법 하자보수청구권 관리단 집합건물법 하자담보책임 Claim for Removal of Disturbance Council of Occupants' Representatives Housing Act Claim of Defects Repair House Managing Body Aggregate Buildings Act Warranty Liability