집합건물관리제도의 개선을 위한 입법론적 연구

집합건물 구분소유와 관리제도의 입법적 개선방안을 연구했다.

‘Aggregate building' is the term that describes a building in which separate owners own the building, and the owners own their separated parts of the building. The law only recognizes only one person as a owner of a building, but exceptionally, according to the Law of Aggregate Building Article 1, when a building is separated into several parts as constructs and the building can be used as several independent spaces, the building can be recognized as owned by several owners. In that kind of building, it is inevitable that the building is divided into two parts of shared part, which should be shared among the owners, and private part, which can be used exclusively by possession right.

The private part of the building is a private person's space, and the space can be managed by the person, but concerning the shared part, the problem is that there is no person who is charged to manage the space, and how the space will be managed is not clear. The reason why the point is problematic is the shared part of the building is related to various provision facilities, which include electricity, water, gas, and telecommunication facilities, and every other facilities, which include maintenance, repairs, administration, accounting, security, environment, landscape, and parking facilities.

The demand of aggregate buildings in Korea is increased remarkably because of the centralization of population into cities which is accompanied by economic development, and the supply of the buildings is increased accordingly. Especially, by the policies of the government, the supply of aggregate buildings is increased exceedingly. According to 2010 Census of Statistics Korea, the portion of aggregate buildings among every house in Korea was 71.0%. Like this, the number of aggregate buildings is increased quantitatively, but concerning the aspect of management of the buildings, there was no development.

As a result, the life span of the buildings is decreased, and by neglected system of management, the owners of the aggregate buildings feel discomfort leading their shared living in them. Accordingly, the government cared for proper management of aggregate buildings, established Housing Manager System, and continued trying to improve the management system of aggregate buildings. As a result, the Housing Manager System improved very much, but still there are many tasks to be done. The objective of this study is to figure out the development tasks of the Housing Manager System and to suggest ideal plans to improve the system.

The development tasks and plans to improve the Housing Manager System in this study are as follows. First matter is related to the system of the managers and managing group of the managing institution. The law of aggregate building stipulates that when separate ownership is formed, the managing group is established simultaneously. However, it can be the cause of indifference in managing the aggregate building, because the owners may not recognize that they are members of the managing group. In addition, unless the owners do institutional acts, the managing group has no power. To improve the matter, incorporating the managing group is required.

When the managing group is incorporated, the owners can naturally recognize the existence of the managing group in the process of the incorporation, and they can have proactive interest in the function of the managing group. And the managing group should appoint a manager, but small managing group whose members are less than 10 is out of the regulation. However, small managing groups also need a manager. Therefore, it is problematic that the appointment of a manager is not mandatory when the number of members of the managing group is small.

So sufficient management of the aggregate buildings should be done by mandatory appointment of a manager regardless of the number of the members of the managing group. Also, there is a problem regarding debts of the managing group. According to the law of aggregate building, the owners of aggregate buildings are responsible for the debts of the managing groups. And the person who succeeds the separated possession right is also responsible for the debts. However, the person who succeeds the separated possession right has no way to recognize the debts of the managing group in prior.

So the public announcement system of the debts of the managing group should be established to enable the succeeder to know the existence of the debts of the managing group in prior. The way of deciding matters of the assembly of the managing group is also problematic. According to the law of aggregate building, when there are matters which should be decided by the assembly, more than 4/5 of the separated possession right owners and 4/5 of the people who have the voting right approves the matters by means of documents, the matters are regarded as passed.

However, in ordinary occasions, decisions are made by half of separated possession owners and the people who have the voting right respectively, so there is a proportional problem. In the ordinary assembly of the managing group, decision can be made by means of documents or a substitute, so the law that stipulates another decision-making number of people when the decision is made by means of documents should be revised. It is problematic that in the law of aggregate building, there is no regulation that stipulates the qualification of a manager. Aggregate buildings are the objects which should be managed professionally.

So when a manager who has no professional skills manage the aggregate building, high-quality management cannot be anticipated. This is the way by which the living standard of residents of the aggregate building declines. Therefore, the systematic revision should be done to guarantee. Second, there is a problematic point regarding the ranges of private part and shared part. Aggregate buildings are divided into the two parts, private part and shared part, and the main object of the m

제1장 서론 1 제1절 연구의 목적 1 제2절 연구의 범위와 방법 3 제2장 집합건물관리의 기초이론과 입법례 4 제1절 집합건물의 종류와 관리의 개념 4 1. 집합건물의 종류 4 2. 관리의 개념 5 (1) 협의의 관리행위 5 (2) 광의의 관리행위 7 (3) 집합건물의 관리행위 8 3. 집합건물관리제도의 필요성 11 제2절 집합건물관리의 법원 12 1. 민법 12 2. 집합건물법 12 (1) 집합건물법의 입법배경 13 (2) 집합건물법의 주요골자 14 (3) 민법과의 관계 15 3. 주택법 16 4. 임대주택법 17 5. 적용상의 문제 18 제3절 집합건물관리의 법률관계 19 1. 집합건물의 구분소유권 19 (1) 구분소유권의 의의 19 (2) 구분소유권의 요건 21 (3) 구분소유권의 내용 25 2. 집합건물의 관리권 31 3. 집합건물의 관리의무 32 제4절 집합건물의 관리방식 34 1. 주택법상 관리방식 35 (1) 사업주체에 의한 관리 35 (2) 입주자에 의한 자치관리 35 (3) 주택관리업체에 의한 위탁관리 36 2. 임대주택법상 관리방식 37 3. 집합건물법상 관리방식 38 제5절 집합건물관리제도에 관한 주요국가의 입법례 39 1. 구미권 39 (1) 독일 39 (2) 프랑스 45 (3) 영국 47 (4) 미국 49 2. 아시아권 53 (1) 일본 53 (2) 싱가포르 55 (3) 중국 57 3. 시사점 58 제3장 집합건물관리제도의 주요내용 59 제1절 관리기구 59 1. 집합건물법상 관리기구 59 (1) 관리단 59 (2) 관리인 68 (3) 관리단과 관리인의 관계 78 2. 주택법상 관리기