區分所有的 共有法理의 再考

Consideration of Sectional Possessive Co - ownership Jurisprudence

If some people agreed to purchase one real estate, and sectionally possess its specific part, they will have to divide the relevant lot, and register the part by their own name. But more often than not, they make a co-owning registration without going through a common registration due to the complexity of the lot-out procedure, uncertainty in land-conversion procedure, and avoidance of tax burden. Likewise, in regard to the case that they agreed to sectionally possess the special part of a land or a building, and passed through a common registration, the Supreme Court ruled that they can dispose of a specific part since they mutually trust their names, so there will be another mutual name trust relation with its other repurchaser. Such a position of the precedent is that firmly created to seek for solving material validity in an individual case since the enactment of our civil law, but reveals a challenge not to match with the baci principle of our civil law. Because that substantially it is an factual independent ownership to a specific part, but is only formally registered as common owning, can not be regarded as correct official notice of substantive rights relation. Also it has many aspects contradictory to the baci rules of civil law such as one-property one right meaning there is only one right in an object, and realty right legalism meaning the kinds and contents of realty right should be prescribed at law, and formalism meaning the change of reality right should be registered. Thus, in effect, even if they agreed to sectionally possess a specific part, and registered it as co-ownership, it should be settled by the theory of general co-owning. In other words, it should be argued that an agreement to sectionally possess a specific part will have only obligational effect as that of management method or division based on unanimous agreement. Thus, in its breach, claims of contractual responsibilities like coercive execution, damages, and contractual cancellation can be made. And the agreement of management method between managers will not be succeeded to an assign. If it effects even to the assign, then they should agree to transfer the management method or sectional agreement in assigning a common share, and have the resistance requirement of credit transfer. As above, while respecting for the parties' intentions, and seeking for material validity too far, it came up with many respects conflicting with the basic principle of civil law. The precedent of the Supreme Court is the result of seeking for a valid resolution in an individual case, but it needs to make an interpretation in line with civil law in that it becomes th basis of national decision-making. If the precedent is fixedly settled, so it is difficult to change, then it will be valid to introduce a solution through the revision of civil law.