도시 및 주거환경정비법의 사법적 관계에서의 문제점과 개선방안 = Problems and improvement plans for city and residential environment maintenance law in legal perspective

도시 및 주거환경정비법상 재건축 등 정비사업의 사법적 쟁점과 개선책을 연구했다.

The construction of apartment houses in large scale can be divided broadly into two ways; one is the construction by a construction company’s purchasing land under the housing act and another is the construction by the association organized by the residents living in deteriorated area. This study is made focusing on the rebuilding of apartment houses by the residents living in deteriorated area under the Law of Urban and Residential Environment Arrangement ("Urban Arrangement Law").

Korea has executed policy of massive supply of houses to figure out housing shortage problem in the course of industrialization and urbanization since the 1970s, but due to sudden industrialization, the need for the maintenance of problematic residential area of city and the demands for the improvement of residential environment rather increased due to increase in city density.

At the time of industrialization and urbanization, construction techniques were relatively left behind and there were not much recognition on the systematic maintenance and management of buildings facilities, leaving the residential environment in inferior condition, so the houses supplied massively in the days of development now require well organized and efficient management and maintenance. In this accord, for the improvement of the aged and worn out residential facilities of the city, various maintenance projects were introduced, and were executed by being ramified into redevelopment project, reconstruction project, urban center redevelopment project and factory redevelopment project.

However, since varying ground laws stimulate different project methods, the diversity of the ground laws of such projects after all resulted in confusion, causing inequity, inefficiency and ceaseless corruptions and disputes along with various city problems due to the individual execution based on the interests dynamics among constructor and residents, and failure of housing market policies to counteract readily to the changes of social conditions oftentimes led to pause of redevelopment and reconstruction projects etc. Hence, construction industry came to face the need to integrate inappropriate residential site maintenance related laws.

The law that came to be established to integrate and unify maintenance projects for such need is Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents puts emphasis to improve urban environment and raise the residential living quality by stipulating the required issues to repair areas that require restoration of city functions or include inappropriate residential environment by design and ameliorate aged poor buildings efficiently.

Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents reinforced legal procedure, involvement of public domain or the responsibility of public sector including the domains of city plan projects like private sector led redevelopment projects as a way of city plan project.

When we judge to see if Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is a public law or a private law, we cannot deny that is a public law, for the provisions of this Act are mostly ones that require the approval of reconstruction execution committee, approval of maintenance project cooperative, project execution plan, and approval of administrative body like previous announcement etc as the conditions of effect.

The reason administrative body takes charge of approval by getting involved across the entire aspects of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is to stipulate the procedures like approval by project stages and supervise progress condition when execution committees rise so rampantly, leading to ceaseless occurrence of disputes and corruptions regarding project execution and maintenance project cooperatives are organized by non-experts, leaving project execution inefficient and imposing excessive burden on cooperative members.

However, although the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is a public law, the legal nature of execution committee, the position of cooperative members and the relation with construction company etc may be deemed to represent the aspects of private law. As such Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents grounded on public law, parts that are not related to administrative body include considerable portions to be solved through theories of private law.

Since the issues after the approval of reconstruction maintenance project construction completion belong to private law, they need be examined based on private law. Rebuilding by the residents has a series of courses such as the organization of the association, the approval of administration and disposal plan, the construction of buildings, and the completion of the construction. However, the treatment of the land and buildings to be rebuilt would be at issue, which title is trusted under the third’ party’s name prior to the organization of the association, since there are two ways of the ownership appertaining to the rebuilding: trust and replotting.

The Urban Arrangement Law provides replotting solely, without defining trust.. But, trust has been used in practice prior to the enforcement of the Urban Arrangement Law, and it is still being preferred after the enforcement of the Urban Arrangement Law. Thus, there would be certain reason of providing relotting only without defining trust and replotting both in said law. Rebuilding by previous law of the possession of complex building pertained to private law, but public regulations have been also introduced, introducing the regulations in public law, in order to prevent any corruption or delay of the constriction pro

제1장 서론 1 제1절 문제의 제기 1 제2절 연구의 목적 6 제3절 연구범위와 방법 8 1. 연구의 범위 8 2. 연구의 방법 9 제2장 도시 및 주거환경정비사업 절차 12 제1절 연혁 및 제정배경 12 제2절 도시정비사업의 범위 14 1. 주거환경정비사업 15 2. 도시환경정비사업 20 3. 주택법상 주택단지와의 구분 21 제3절 도정법에 의한 정비사업절차 23 1. 도시·주거환경정비기본계획의 수립 23 2. 정비구역의 지정 및 정비계획 26 제4절 재건축추진위원회와 재건축조합 32 1. 재건축추진위원회 32 2. 재건축조합의 설립과정 40 3. 재건축정비사업조합 47 제3장 도시정비사업의 시행에 따른 등기 72 제1절 도시정비사업 등기절차 72 1. 등기절차 72 2. 이전고시 후의 등기절차 74 제2절 도정법에 의한 소유권보존등기 85 1. 문제의 제기 85 2. 부동산등기법 제46조의 구분건물표시에 의한 등기 가능여부 86 3. 도정법과 부동산등기특별조치법의 충돌문제 87 4. 도정법에 의한 건물보존등기 신청시 동일한 신청서의 의미 87 5. 소결 90 제3절 주택법에 의한 금지사항 부기등기의 도정법 적용 92 1. 문제의 제기 92 2. 법적 근거 93 3. 주택법과 도정법의 관련 문제 97 4. 소결 103 제4장 도시정비사업의 문제점과 개선방안 105 제1절 재건축정비사업에 명의신탁법리 적용 여부 105 1. 도정법의 법률관계 105 2. 도정법 시행 전과 시행 후 105 3. 명의신탁과 조합원의 지위 116 4. 개선방안 122 제2절 재건축조합의 조합원 분담금 확보방안 124 1. 문제의 제