集合建物의 區分所有에 關한 法的 硏究 = (A)legal study on the divided ownership of collective building

집합건물의 구분소유와 공용·전유부분의 법률관계를 연구했다.

Since the 1960's, industrialization necessitated the population to centralize around the urban area caused serious housing and land shortages. High demand for housing in a limited area of land made it unavoidable to construct collective buildings for the purpose of accomodating large number of people over a small land space. The archtectural form of the collective building first started out as 5 story building. From the 80's, number of high-rise apartment buildings(l5-20 story) started to increase, and by the 90's, almost all collective buildings were built in high story.

In our present society, there is a new trend in the type and the usage of the such residence ; type of housing is collective building and its usage is through leasing. In order to regulate many legal problems derived from the collective buildings, the law of the ownership and management for collective buildings has been enacted on April 10, 1984 and has come into effect on April 10, 1985. The reason is that various, complicated legal issues in the collective buildings couldn't be solved reasonably by only article 215 in civil law.

According to this law, the divided ownership is the ownership for independent parts of the building in structure and function and the divided ownership building means each parts are under regulation of this law. Because divided ownership regulates the legal relationships among many people of the collective buildings, it poses many characteristic differences from general real estate ownership dispite legal ownership. The essence of the divided ownership right is the united right of three other elements - the owner's monopolistic using part, using public parts and necessary land using right.

Because the divided ownership right is 'one' united right, when divided ownership building is sold, it transacts one's right on the whole. In order to unify harmonious public life among the divided owners, divided owners can take three types of sanction against the obnoxiously acting divided owner accordingly to the autonomous rule and the congregation. However, this law is, in fact, founded on the Japanese Law related to the divided ownership of collective building, which was enacted in 1962 and revised in 1983. In this respect, this law may not be suitable to the problems in our society.

This thesis proposes a possible remedy for the existing problems in management and interpreting the legislation. It also presents a rational legislative reform on the theoretical system of the collective building. For this purpose, This thesis is organized as follows. Chapter I . Introduction.

목차 = ⅰ ABSTRACT = ⅵ 第1章 序論 = 1 第1節 硏究의 目的 = 1 第2節 硏究의 範圍와 方法 = 3 第2章 區分所有權의 對象 = 4 第1節 區分所有의 法理 = 7 1. 學說 = 7 2. 結語 = 12 第2節 專有部分 = 16 1. 專有部分의 要件 = 16 2. 專有部分의 物的 範圍 = 19 3. 專有部分의 消滅 = 22 第3節 共用部分 = 24 1. 共用部分의 所有關係 = 24 2. 共用部分의 種類 = 25 第4節 集合建物의 垈地使用權 = 28 1. 建物의 垈地 = 29 2. 垈地使用權의 法的 性格 = 31 3. 專有部分과 垈地使用權의 一體性 = 34 第3章 區分所有者의 權利義務 = 40 第1節 專有部分에 대한 權利義務 = 42 1. 他人의 專有部分 使用請求權 = 42 2. 共同利益 尊重義務 = 43 第2節 共用部分에 대한 權利義務 = 44 1. 共用部分에 대한 共有持分 = 44 2. 共用部分의 使用 = 45 3. 共用部分의 管理 = 46 4. 共用部分의 變更 = 47 5. 共用部分의 負擔·收益 등 = 48 6. 共用部分의 利用에 關한 特性 = 48 第3節 集合建物의 賃貸借에 따른 權利義務 = 51 1. 集合建物 賃貸借의 特質 = 51 2. 集合建物賃貸事業者의 權利義務 = 52 3. 集合建物賃借人의 權利義務 = 63 4. 앞으로의 課題 = 77 第4節 構成員으로서의 權利義務 = 78 第4章 集合建物의 管理 = 82 第1節 集合建物管理의 必要性 = 83 1. 集合建物의 種類와 管理의 必要性 = 83 2. 運營管理와 維持管理 = 85 第2節 管理團 및 管理人 = 87 1. 管理團 = 87 2. 管