상호명의신탁적 구분소유관계에 관한 소고

Concerns of Sectional Ownership within the Co-title Trust Agreement

With the agreement to specify the location and area of real estate and to hold a partition ownership in a piece of land or a building, it's possible to make a registration as co-ownership of such partition ownership. This legal relationship has a form as an intention concerning to own specific parts separately as using external public notification for a co-owned share registration. This relationship is under mutual title trust agreement and by all means more accurate using the term 'partitioned ownership relations according to mutual title trust agreement' instead of partitioned relationship of co-owned share. The partitioned ownership of mutual title trust agreement exclusively and independently owns the part specified ina location and an extent with intention of partitioned ownership. However, for the share exceeding the particularly registered part, a concerned party trusts his share to co-owner and simultaneously receives the share excluding the specific part from the co-owner. There is a controversy that if mutual agreement is necessary besides the partitioned ownership concerning specific parts of property, in order to make the partitioned ownership stand mutual title agreement has to be formed. The controversy at this issue actually raises that the partitioned ownership relations is formed even if there is no direct mutual agreement between the final vendee and a registered co-owner in alienation of the specific part if the property. In that case mutual title trust agreement has to be formed based on intention concerning parties willing to set up partitioned ownership relations. Even though no such agreement exists, intentions of a partitioned ownership and the registration of co-owned share can be assumed as transferred already as a public notice of the intention. So, the mutual title trust agreement is presumed and it is desirable to extend the scope of the establishment of the agreement. In internal relationship of partitioned ownership relations according to mutual title trust agreement, the person exclusively owning the specific property is the independent owner of the partitioned property, but externally can only claim a registered co-owned share of the whole property. There are two cases when a registered co-owner in a partitioned relationship transfers his or her right. First, he or she can sell the specific part as the property of a partitioned ownership so that the registered share represents the specific parts. Second, the actual registered co-owned share can be transferred. At this case if the seller's intention is to sell the particular property but the purpose of the partitioned ownership is not obvious, the property has to be the co-owned share of the whole property. In addition, partitioned ownership relations according to mutual trust agreement no longer exists when the right of co-owned share of the whole property os alienated. The partitioned ownership relations is not converted to general co-owned relations but the mutual title trust agreement is canceled when the transferee buys the co-owned share.