미완성의 집합건물을 양수 받아 완공한 경우에 구분소유권의 원시취득자

• 영문명: The Original Acquisitor in Case of the Transfer and Completion of the Incomplete Condominium
• 발행기관: 한국민사법학회
• 저자명: 이춘원(Lee, Choon-Won)
• 간행물 정보: 『민사법학』제48호, 163~189쪽, 전체 27쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2010.03.31

영문 초록

The divided ownership over the condominium buildings, from the aspect of the condominium, has originally originated from the hierarchial divided ownership with almost no co-owned service area, yet the area of the co-owned service area has gradually expanded. Therefore, in the hierarchial ownership,, in particular in the original type of hierarchial ownership without any co-owned space, every space of the constructed real property is subject to a division for ownership, and the form of the ownership can be resolved only through a divided ownership. However, in case of the condominiums in a developed form that currently constitute the majority, not all spaces are subject to a divided ownership. In other words, there are spaces that are not subject to a division for ownership, and these spaces can only be regarded as the co-owned spaces. Therefore, the ownership relationship in the current condominium building is a combination of the divided ownership and co-ownership, where the divided owner has the rights to both the divided ownership and along with co-ownership over the spaces that were not previously subject to a division for ownership. Here, from the perspective of material, the exclusively-owned space is merely a space surrounded by the co-owned spaces, and hence the co-owned spaces may be described to have priority over the exclusively-owned space. On the other hand, as the co-owner may be seen as to place more values over the exclusively-owned spaces from the perspective of sociology, the priority of the space that is subject to exclusive ownership may be emphasized. Therefore, it is the current reality where the priority may not be placed in either the exclusive ownership or co-ownership alone. Hence, the Mosaic Theory (the typical “matchbox ) that forms the ownership relationship of the condominium buildings by placing priority only on the co-owner spaces may no longer be available for application. In this sense, the ruling under the consideration is reasonable as it conforms with the changes in the condominium buildings in reality. Provided however, although the ruling under the consideration has in fact changed the precedents, it has not yet rescinded the precedents, and therefore there may be a degree of confusion over which precedent to apply in the ruling over similar cases in the future. Therefore, we may only hope and expect more precise standpoint from the Supreme Court s ruling for similar cases in the future. On the other hand, the issue of protecting the creditor s rights, regard to the building owners, may be presented when the building ownership has changed during the construction of the condominium buildings. In such case, an approach shall be considered to be taken to resolve such issue from through an enforcement over the corporeal property as an enforcement procedure over a building that is being constructed, rather than by simply reviewing the issue as a conflict over the restoration of ownership.

목차

Ⅰ. 대상판결의 사실관계 및 판결요지

Ⅱ. 대상 판결의 검토

Ⅲ. 결 론

참고문헌

키워드

집합건물 구분소유 계층적 소유 공용부분 모자이크이론 Condominium Divided ownership Hierarchical ownership Co-owned space Mosaic Theory