集合建物의 區分所有權과 垈地權에 관한 硏究
(A) Study on the Division Ownership and the Use of a Lot of the Collective Building
집합건물 구분소유권 대지권;
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In general Korean people traditionally used to own one independent building, that is, an independent house, on a lot of land. That was the general ownership type of buildings in Korea. Accordingly it was rare for multiple persons to own and use divided parts of a building. Korean Civil Law took the principle of one right for one property in which one building was viewed as one property and one ownership existed. However, one exempt was recognized that in the name of divided ownership ownerships of divided parts of a building were recognized(Article 215 of Civil Law), but the registration of divided ownerships was only stipulated for the divided registration of a building in the Real Estate Registration Act. Following the positive promotion of the downtown development plan, the explosive population increase and concentration in cities caused by the economic development after 1970's, the high utilization and stereotypic use of land were needed. This situation made it difficult to rationally regulate the new types of legal relations, so the Act on the Ownership and Management of Collective Buildings was legislated on April 10, 1984 (Act No. 3725) and began to be enforced. This Act introduced new legal concepts such as exclusive parts, shared parts, land rights, and land use rights. Therefore, the Real Estate Registration Act was revised to update the legal procedures. But not only the special legal concept of collective buildings was not completely established but also there are occurring problems that the principle of the Civil Law cannot be applied as it is. This study reviewed and analyzed some related problems so as to offer their solutions as follows: First, there is a problem that there is no legal stipulation on the case where when a registration official needs an expert in the actual examination of the divided parts of a building, who and according to what procedures the expert shall be provided. To solve this problem, a systemic change such as the establishment of the registration regulation of the Supreme Court should be made. In this case, it would be helpful to adopt the system of land and house examination to support Court Registration Officials which is in force in Japan. Second, there is a stipulation which prohibits the transfer of ownership of or the establishment of mortgage on an independent piece of land or an independent building because the building and land are viewed as one disposal after the registration of land rights(Article 135-2 of the Real Estate Registration Act and Article 165-2 of the same Act). However, there is an stipulation as an exemption that excludes the one disposal of the parts of a building or land when otherwise stipulated by a provision in a proviso of Article 20-2 of the Collective Building Act or notarization thereof, but in this case there is a problem whether the feasibility of the eremption stipulation is valid or not. The registration of a collective building under the present law takes the whole divided parts of a building as one unit. Also, this exemption stipulation is positively against the one unit of disposal which is the original intent of the Collective Building Act. More than that, there is taking place lots of confusion as to the recognition of the exemption stipulation which excludes the one unit disposal in the actual registration. In the light of this problem, a revision should be made making the provision or notarization which excludes the one unit disposal of the divided parts of a collective building and land. Third, there is a problem as to whether the registration of a lease right both for a building and its land where the land right was registered is valid or not. In this case, since the lease right is registered as an actual shared portion of the property, the registration of a lease right for the land of a collective building. However, the lease right takes the nature of use property during the valid period of the lease and also the nature of the mortgage for the return of the lease security money. Therefore, there can be raised a question whether it is possible to establish a lease right for the shared parts of the land which belong to the building. But because a lease right is not a property right which is viewed as one unit disposal and is given a legal rlght for the property, the registration of the lease right cannot be viewed as binding on the shared parts of the land although there is an indication which binds the land. However, it can be viewed that because the objective unit of the registration of a lease right is registered, it is possible to register the lease right of the building only, and it is reasonable to apply for the registration of a lease right for a building without indicating a right for the land of the building. Forth, there occurs a problem when there is omitted an indication of an intent that there is an independent registration in the building registry. In this case, the registration official should make a revised registration under the provisions of Article 72 of the Real Estate Registration Act. But the needed revised registration frequently is omitted due to the over work load or negligence of the registration official, which is against the original purpose of the land right registration adopted to raise the efficiency of the public recognition function of the Real Estate Registration. Therefore, registration officials should find out such registrations as need to be revised and revise the registration properly. In addition, it should be possible for registration officials to revise such registrations needing a revision with his law-granted rights clearly and quickly regardless of interests for the sake of actual rights, and such revision registrations should not delayed by any procedures or other reason.