구분소유적 공유에 관한 법률적 재검토

Abstract

This study is on the legal review about the co-ownership of divided ownership type. It is true that we doubt whether the co-ownership of divided ownership type is acknowledged in the Korean civil law-system or not, because Korean civil law adopt an externality on the transfer of a real right. The method of legal composition about the co-ownership of divided ownership type is classified with two. The one is the theory of mutual title trust, and the other is the theory of co-ownership. The Korean supreme court has been adopting the theory of mutual title trust through the precedent. The first theory, the theory of mutual title trust has many legal problems, for example, the theory is contradictory to the primary principle of the civil law and cannot resolve the legal relation of the disposal(sell and transfer) to the third party, the statutory superficies and the quota documentary, etc. The second theory, the theory of co-ownership can resolve the problems somewhat, but the theory also has legal problems. Eventually, we must modify the theory of mutual title trust, accepting criticism of the theory of co-ownership to minimize the theoretical problem, even though approach the theory that accord with the essence of the co-ownership of divided ownership type. It is necessary that we examinate ‘de lege ferenda’ about the co-ownership of divided ownership type in this background. That is to say, we hurry to seek new alternative to overcome both theories.