구분소유권의 성립과 소멸에 관한 법정책적 고찰 - 대법원 2016. 1. 14. 선고 2013다219142 판결의 평석을 중심으로 - = A study on legal policy about establishment and extinction of divided ownership - Commentary on Supreme Court en banc Decision 2013Da219142 Delivered on January 14, 2016 -

집합건물 구분소유권의 성립과 소멸에 관한 법정책을 검토했다.

Act on ownership and management of condominium buildings was enacted in order to make a public announcement the relationship of rights about divided ownership and to prevent disputes due to real estate transactions. This act replace Civil law Article 215. This law has been changed to reflect the social phenomena since 1984. But, this act has proved its own limitations to resolve conflicts. Especially, there is no basic regulation about establishment and extinction of divided ownership. So, we have supplemented legal vacuum by interpretation(theory or judicial precedent).This judgment(Supreme Court en banc Decision 2013Da219142 Delivered on January 14, 2016) is an example of interpretation.

Especially, this judgment quoted Supreme Court en banc Decision 2010Da71578 Delivered on January 17, 2013, and then added legal principle about extinction of divided ownership by annulment of divided ownership. Previous studies about divided ownership are concentrated on the establishment of divided ownership. But in this study I will review both the establishment of divided ownership and extinction of divided ownership. And then, I will present as follows legislative bill about establishment and extinction of divided ownership on legal policy.

Act on ownership and management of condominium buildings Article 2-3(Divided ownership of buildings) (1) Divided ownership of buildings is established by legal act for dividing ownership. Legal act for dividing ownership is decided on entering the building ledger of divided building. (2) Divided ownership of buildings shall lapse if any of the following causes arises: 1. the time changed from building ledger of divided building to building ledger of general building by annulment of divided ownership. Provided, if there are several divided owners, the time changed to building ledger of general building by agreement of not less than 4/5 of all divided owners2.

the time that divided building is destroyed all3. the time that six months elapse without reintegration after being destroyed partial4. the time that divided building is damaged beyond restoration due to loss of independent of structure and independent of use(independent of use in case Article 1-2)