구분소유자의 공용부분 사용에 따른 부당이득의 성립에 관한 검토- 대법원 2020. 5. 21. 선고 2017다220744 전원합의체 판결을 중심으로 -

Abstract

Due to the structural characteristics of the condominum buildings, many sectional owner own and use their exclusive and common sections. Due to these structural features, problems such as noise and smoking are inevitable. However, the problems caused by these structural features are not limited to the exclusive part. In particular, as can be seen from the judgment 2017Da220744 of SUPREME COURT OF KOREA, the monopolizing and using the common part by some divisional owners are one of the representative problems that can occur in the common part. In this regard, the Supreme Court has ruled that unjust enrichment cannot be established because no damage has occurred in the past. However, the Supreme Court affirmed the establishment of unjust enrichment by changing the existing judgment, and confirmed that the managing body stipulated in Article 23 etc. of ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS can exercise this right to claim unjust enrichment. At the same time, it was confirmed that the exercise of the right to claim unfair advantage can be exercised by the management group stipulated in Article 23 of the Collective Building Act and below. In this paper, the logic process that can be confirmed in the process of confirming existing judgments and changing precedents was introduced, and at the same time, the validity was analyzed. In particular, it was attempted to identify the existence of undue possession, the establishment of unjust enrichment, and who can exercise the right to claim unjust enrichment. At the same time, this judgment of the Supreme Court of Korea was compared with a similar judgment of the Supreme Court of Japan.