구분소유권의 성립시기에 관한 고찰 = 대법원 2013. 1. 17. 선고 2010다71578 전원합의체 판결을 중심으로

집합건물 구분소유권이 성립하는 시기를 판례를 중심으로 검토했다.

As industrialization leads to concentration of population in urban areas in our society, the type of housing also changed from the single-family residential type to the multi-family residential type such as apartments. The commercial facilities has become more concentrated with one large building housing tens or hundreds of businesses. Therefore, the concept of the divided ownership system is receiving more spotlight as it becomes an important form of real estate ownership. Along with it, there are growing needs to clearly define the concept of divided ownership and protect the interests of the stakeholders.

In response, the Supreme Court has made a significant decision pertaining to divided ownership (Supreme Court decision on Jan. 17, 2013, case no. 2010da71578, hereinafter referred to as “Target Ruling”). The previous ruling, specified that the divided ownership is established when the collective building is registered at the registry as a buildingsubject to divided ownership laws. But the Target Ruling rules that even before the building is physically completed, if there are any objective indication that the ownership of building would be divided, written in the building permit application or the sales contract, etc., the act of ownership division would be recognized.

At the time of objective or physical completion of the building the divided ownership would take effect, thus the registration at the registry is no longer the constituent element. But, the divided ownership should be clearly defined in a way that the stakeholders clearly understand their rights over a part of the building as that right is exclusive and affects multiple individuals. Therefore, the act of dividing the ownership of the building needs to be clearly expressed during the construction or at the time of changing the form from a general building to a divided ownership.

As a result, it is difficult to conclude that the divided ownership is established at the time of building permit acquisition or the execution of the sales agreement. In this study, “Establishment time of divided ownership”, the subject of Target Ruling, is reviewed and the validity of the change in the court’s ruling would be discussed. Lastly, the study explores alternative proposals to make the issue clearer from a legal standpoint and protect the interest of the stakeholders in the buildings.