區分所有的 共有의 法的 構造에 관한 硏究 = (A) study on the legal structure of the co-ownership representing de facto partition ownership

토지의 사실상 구분소유적 공유 관계의 법적 구조를 연구했다.

Co-ownership representing de facto partition ownership is a legal regulation that has not gone through the usual procedures for parcel of land under several circumstances after a owner purchase particular part of one lot, but after registering it as co-ownership shares the owners internally divide the lot into specific parts and exclusively use and make a profit with the partial land. However, apparently, this Co- ownership representing de facto partition ownership shown on the register seems to be one of ownership regulations, but it is different from ordinary ownership.

As each owner exclusively use and make a profit with the partial lot but has the intention to sell it freely, there is a disparate fact that real ownership is not announced publicly as one type of registrations in legal regulations.

To eliminate this estrangement, a couple legal aids are developed; the opinion to solve this by using another mutual name trust relation theory shown in a precedent, and the opinion to insist it as the ownership prescribed in the civil law. According to another mutual name trust relation theory, the existing Supreme Court constructively deals with it in connection with the fulfillment of necessary conditions of another mutual name trust relation, so there are several critical matters as follow; difference from the main course of Title Trust, vague evidence that a particular person success to mutual name trust relation if some owners sell their shares, unclear legal evidence that the registration becomes invalid in future if the third person takes over the void- shares, and various judgemental results and unnecessary complicated procedures for each person concerned in order to solve the title trust. Joint Ownership Theory is raised against this another mutual name trust relation theory.

However, there are some doubtful facts in this joint ownership theory as follow; first of all, its certain precondition should be recognized in the civil law, the special contract to manage the Co- ownership representing de facto partition ownership can not be approved although we are aware of the special contractual fact that some owners exclusively control the entire or partial common property, and the agreements of common property management and division can not be effectible to the third parties. In other word, there is no legal evidence regarding the succession of Impartible Joint Property under the present civil law without the specific provision for bond succession between owners stated in the previous civil law.

Accepting bond agreement has legal force for the third parties is inappropriate as there is no legal evidence in Impartible Joint Property, in the consideration of the nature of co-ownership shares, which is quantitative part of ownership, and the declared principle of fluctuations in reality rights. Therefore, it is generally considered that the agreement of Impartible Joint Property can not be against a specified successor. In addition, there is a limitation to reflect different opinions from other owners in the Joint Ownership Theory focusing on its formality.

In this viewpoint, Another Mutual Name Trust Theory, which consider internally each owner own particular part of the lot and externally each owner has its share regarding to the method of public announcement after respecting each owner’s interest and opinion, is rather reasonable than Joint Ownership Theory. However, there are still some difficulties in both theories to solve the matters regarding the Co- ownership representing de facto partition ownership. Therefore, we can discuss the legislative theory with two ways in addition to the analytic theories stated above in order to solve these problems. First, it is to propose the amended scheme of Real Property Registration Act to make the procedure for joint property division simplified in order to prevent from the establishment of the legal relation of Co- ownership representing de facto partition ownership. Secondly, it is to put the regulations related to the Co- ownership representing de facto partition ownership in the civil code.

In other word, it is possible to discuss the legislative theory that allow the full force and effect of reality rights, when joint owners agree on the rights and use of the joint property regarding the Co- ownership representing de facto partition ownership, and then register the details.

제1장 序論 = 1 제1절 연구의 배경과 문제의 제기 = 1 Ⅰ. 연구의 배경 = 1 Ⅱ. 문제의 제기 = 6 1. 법리적 측면 = 6 2. 입법정책적 측면 = 9 3. 법사회적 측면 = 12 제2절 연구의 범위와 연구의 방법 = 13 Ⅰ. 연구의 범위 = 13 Ⅱ. 연구의 방향 = 13 Ⅲ. 논문의 구성 = 14 제2장 구분소유적 공유에 관한 기초법리 = 16 제1절 序說 = 16 제2절 공유관계의 일반론 = 16 Ⅰ.서 = 16 Ⅱ. 연혁 및 입법례 = 19 1. 로마법 = 19 2. 독일법 = 20 3. 일본법 = 21 Ⅲ. 공유물의 관리 = 24 1. 공유물관리방법 약정의 내용 = 25 1) 처분ㆍ변경의 포함여부 = 25 2) 공유물의 배타적 사용ㆍ수익의 가부 = 26 3) 변경가능성의 문제 = 27 2. 공유물관리에 관한 약정 승계 = 29 Ⅳ. 공유물의 분할 = 30 1. 공유물 분할에 관한 약정 = 31 1) 공유물분할의 자유와 제한 = 31 2) 공유물분할약정의 승계 문제 = 31 2. 공유물분할의 소 = 34 1) 소의 성질 = 34 2) 소의 당사자 = 34 제3절 명의신탁 및 상호명의 신탁에서의 법률관계 일반 = 35 Ⅰ. 신탁행위에 기초한 명의신탁 = 35 1. 서 = 35 2. 명의신탁의 연혁에서의 신탁행위기조 = 38 1) 명의신탁이론의 기초로서의 수탁자의 소유권취득 = 38 2) 명의신탁이론의 발전 = 44 3. 신탁행위 라는 관점에 대한 논의 = 50 1) 학설 = 50 2) 판례 = 55 3) 검토 = 56 Ⅱ. 명의신탁의 성립 = 58 Ⅲ. 명의신탁의 법률관계 = 60 1. 대