區分所有權의 所有權性 變質論

• 영문명: Discussions on the Changing Nature of Condominium Ownership
• 발행기관: 한국민사법학회
• 저자명: 강혁신(Kang, Hyuck Shin)
• 간행물 정보: 『민사법학』제40호, 125~156쪽, 전체 32쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2008.03.31

영문 초록

Ownership refers to a right for property interests attributed exclusively to a party. For instance, as the assurance of freedom is a major concern of public law science in terms of relationships with national authorities, the assurance of ownership among citizens also takes a central position in private law science, and actually forms and develops its pivotal theories in real right. Above all, as long as condominium ownership is concerned, it is most essential to focus on the nature of condominium ownership as a right, especially ‘the nature of its ownership aspects.’ That is, this is a concern on whether the legal principles of condominium ownership involve only those of ownership or other legal principles as well than ownership. And supposing that there is another legal principle apart from ownership on the condominium ownership, it is necessary to investigate a concern on whether its existence causes a change to the nature of ownership, and whether the ownership aspects of condominium ownership with its nature changed are ‘weakened’ or even ‘changed.’ These questions become a motivation for this study to seek to make further examination into the nature of condominium ownership as an ownership. Conclusively, this study asserts more than anything else that ownership aspects of condominium ownership come to change. In other words, it is reasonable to accept that the ownership aspects of condominium ownership have changed due to changed resolution requirements on reconstruction in Condominium Ownership Act as entirely revised in 2002. First, as consistently discussed above, it is absolutely evident that condominium ownership belongs to ownership right. Second, nevertheless, it is found that condominium ownership is an ownership right whose nature inevitably involves internal constraints due to implementation or restrictions from binding force of statute, compliance with joint profits and more. Third, the nature of condominium ownership as an ownership right becomes considerably weakened, because regulations on claim for auction and claim for sale in reconstruction business justify forfeiture of ownership right. Fourth, based on the resolution provisions on reconstruction in current all-out revision of Japan s Condominium Ownership Act, it is found that spatial limitation on exclusive possession as scheduled originally in condominium ownership evolves or degenerates even into temporal limitation and ultimately the ownership nature of condominium ownership comes to ‘change beyond weakening.

목차

Ⅰ. 論点의 提起

Ⅱ. 民法에서의 所有權 制限 規定

Ⅲ. 規約의 拘束力과 區分所有權의 制約

Ⅳ. 共同의 利益에 反하는 行爲와 區分所有權의 剝奪

Ⅴ. 再建築規定과 區分所有權의 剝奪

Ⅵ. 結論(區分所有權의 所有權性 變質論)

참고문헌

키워드

소유권 구분소유권 집합건물 공동주택 규약 재건축 공동의 이익 재건축 특별다수결 Condominium Ownership Divided Ownership reconstruction