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KCI우수등재 학술저널

집합건물의 소유 및 관리에 관한 법률 개정

임차인에 대한 결의권 부여 및 관리단 분리(또는 별도의 관리단 창설)에 관한 개정위원회 논의를 중심으로

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In terms of works for revision of ‘Aggregate Building Ownership and Management Act (hereinafter called ‘Aggregate Building Act’)’ under the supervision of the Ministry of Justice in February 2011, the purpose of this study was to introduce what is contained such a revised bill of said Act as finished by the Aggregate Building Act Revision Council to date (July 30, 2011) and was also to focus on describing any examinations of the revised bill. The reasons why Revision Council promotes the revision of Aggregate Building Act can be outlined as follows: First, there are frequent cases of disputes over aggregate building primarily resulting from insufficient regulations regarding management for new forms of aggregate building such as residential-commercial apartment complex, studio apartment and complex shopping center. Secondly, it is necessary to prepare any plan for revision that can prevent disputes about aggregate building, advance management system and improve national housing and living environment. These two reasons are the most important purport of this revision for Aggregate Building Act. The issue that have been discussed over the longest term among others in regard to this revision of Aggregate Building Act is the considerations about the grant of voting right to ‘persons who are permitted to use any proprietary by its owner of a partitioned property (hereinafter called ‘tenants’).’ In addition, it is inevitable that a mixture of residential part and commercial part within a building complex or unit involves different characters and methods of management as well as different usages and functions between these two parts. That is why it is necessary to properly adjust those items between these two parts. Therefore, this study dealt with an express provision that the separation of management group or the establishment of another management group should bring same effects on these two parts of building complex or unit, and discussed how another secondary option can be granted to each owner of partitioned property. In regard to said revision of Aggregate Building Act, particularly unless there is any agreement between both parties regarding whether the owner of a partitioned property or its tenants should exert any voting right, there is a room of construction that tenants can exert voting right, even though and regardless whether the owner of a partitioned property claims his or her voting right of any proprietary. But this room of construction may cause the owner of a partitioned property to be ‘deprived of’ his or her original ‘ownership’ of such property, so it is necessary for Revision Council to take more careful and conservative construction and approach to who is the holder of voting right. In addition, in case that any intention of the owner of a partitioned property to exert voting right is not reflected according to the construction of said revised bill without any agreement between parties concerned, and if the voting right held by the owner of a partitioned property is granted to its tenants, but the owner claims to exert the voting right, there is a question about whether the owner’s claim can be inhibited jurisprudentially. This is a question about whether any grant of voting right to tenants without or regardless of any intention expressed by the owner of a partitioned property may overcome the original ‘the jurisprudence of ownership.’ In the opinion of the author, it is reasonable that if the owner of a partitioned property intends to hold the voting right without any agreement with its tenants or parties concerned, the former who holds the ownership of the applicable proprietary should exert the voting right with priority to the latter.

Ⅰ. 들어가며

Ⅱ. 임차인에 대한 의결권 부여

Ⅲ. 관리단 분리(또는 별도의 관리단 창설)

Ⅳ. 검토(구분소유권의 본질은 무엇인가)

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