집합건물 체납관리비의 경락인 승계와 집합건물법 제18조 위헌성 여부

Succession of Successful Bidder for default of management fee in Condominium-Buildings Section for Common Use and Contitutionality or Unconstitutionality of ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS § 18

As in the past, regarding the succession of the default of management fee in condominium buildings to successful bidder, the Supreme Court has provided the standard through decree of 2001DA8677(adjudgment on 20SEP01) et cetera that default of management fee in common section of condominium buildings shall be succeeded to special successor who is successful bidder, by applying the Article 18 of the Constitution (ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS § 18) Besides, the Constitutional Court made a decision of constitutionality that Article 18 of the Constitution (ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS § 18) does not violate the Article §11 ① and Article §23 ① of the Constitution, through the decision (2011Heonba201) of the Supreme Court on 03May13, regarding succession of default of management fee in condominium buildings to successful bidder, which is under the circumstance that successful bidder is the special successor. However, in the case of a compulsory auction which is different from trading, when considering state intervenes and the fact that successful bidder is endowed with the ownership according to the provisions of the decree, not by registration, the successful bidder should be considered as original acquisitor rather than special successor according to the principle of civil law, meanwhile, it is against the principle of clarity that the Constitutional Court, judging the successful bidder as successive acquisitor (special successor) in the Article 18 of the Constitution (ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS § 18). When the auction is considered as an original acquisition as above, smooth collection of default of management fee in condominium buildings from successful bidder shall be difficult. Therefore, the legislative measures needs to be complemented in order to promote the common interests among all partitioned owners of condominium buildings In result, the current regulation of Article 18 of the Constitution(ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS § 18) is to be remaining as section Ⅰ and another regulation “An owner’s credit against another co-owner in relation to the section for common use shall be exercised against the successful bidder to the co-owner” needs to be established as Section Ⅱ. In order to ensure legal stability, moreover, the relevant supreme court rules should be amended to enact legislation, specifying successful bidder succeeds the default of the management fee.