입주자대표회의의 방해배제청구권

Claim for Removal of the Council of Occupants' Representatives under the Housing Act

A Council of Occupants' Representatives(COR) has authority and duties to manage the collective housing such as apartments, including incidental facilities, under the Housing Act. It can do everything to maintain and manage the apartment, in so far as it’s acts are not prohibited or restricted by the regulations. But it is difficult to answer the question, which it can demand the removal of disturbance from a possessor who takes illegally the common use section, the site or the annex facilities of the apartment. Because the right to demand the removal of disturbance is, generally speaking, derived from the ownership, and the COR is not an owner. The korean Supreme Court has not allowed the COR to exercise this right, similarly based on the perspective of the traditional ownership law(Supreme Court Decision 2003Da17774 Decided June 24, 2003). In the case, the Supreme Court has decided in bulk, without separating the claim for the removal of disturbance and the compensation of damages or the return of unjust enrichment. But it’s decision is not improper and inconsistent with another decisions of the Supreme Court, in which were judged independent the claim of defects repair and the compensation of damages. Therefore it is desirable to separate the claim of the COR for the removal of disturbance in the common use section of the apartment from the compensation of damages or the return of unjust enrichment. For it is also respected the perspective of the public law. The claim of the COR for the removal of disturbance contributes to the safety of the apartment, just like the claim of defects repair. Furthermore, to the COR it can be a methode for 'managing' the collective housing, to exercise the authority to demand the removal of disturbance in the common use section of the apartment. Finally, it is not disadvantageous to the sectional owner, to provide the COR with giving authority to demand the removal of disturbance. Because the same right of a sectional owner or all sectional owners does not become null and void by it.