공동주택 하자담보책임 법제의 현황과 문제-2012년 집합건물법과 「주택법」 개정 사항을 중심으로-

Abstract

The people's typical way of residence is an apartment house like an apartment today. The apartment houses have meanings as the valuable goods as well as the basic living place for residents. Accordingly, the maintenance and management of the apartment houses are very important matters, and disputes over the defects in the apartment houses increase gradually. The Act on the Ownership and Management of Aggregate Buildings and the Housing Act respectively prescribe the warranty liability in order to deal with the defect issues in the apartment houses. As a result, there have been confusions about the application of the relevant laws on the warranty liability of the apartment houses. The several rounds of enactments and amendments of the Act on Ownership and Management of Aggregate Buildings and the Housing Act were performed in order to solve legislative system problems, and the Acts were revised again in terms of solving legislative system problems on December 18th of 2012. However, the existing Acts still have legislative system problems. Although the two Acts can be considered 'general law-special law relations', the current legislative system on the warranty liability is incompatible with normal 'general law-special law relations' in some aspects by the Act on Ownership and Management of Aggregate Buildings, general law, being applied in preference to the Housing Act, special law. Furthermore, the current legislative system has contradictory provisions, which make harmonious legal interpretation of the provisions on the warranty liability difficult. Therefore, the current legislative system on the apartment houses' warranty liability should be reestablished to original 'general law-special law relations', and be reorganized according to 'the principle of systematic legitimacy', one of the principles of lawmaking, so that contradictions on the warranty liability between the two Acts does not occur any more. In other words, all matters on the aggregate buildings' warranty liability should be described in detail in the Act on Ownership and Management of Aggregate Buildings, and only exceptional matters for residents' protection should be prescribed in the Housing Act so that the legislative system problems need to be solved not through judicial interpretation but through enactment.