상업용 집합건물 분양계약상 업종제한약정에 대한 규범적 통제

Abstract

In Korea, the number of commercial condominium is rapidly increasing. It is general that there is a business restriction in the parcelling- out contract of commercial condominium which is made between the merchant who is supplied with commercial condominium and the company which constructs and supplies the commercial condominium. And the Korean Supreme Court has consistently admitted the validity of such a business restriction for the purposes of contributing to the convenience of the residents concerned, promoting the common interest of the merchants concerned, maintaining the smooth functioning of the shopping area concerned, etc. On the other hand, in Korea, the percentage of residential apartment among diverse housing types reaches to about 60%, in 2015, and on the whole, commercial condominium has been formed simultaneously or around the same time with the constructing of neighboring residential apartments, mainly to contribute to the convenience of the residents who live in the neighboring residential apartments. Accordingly, presumably, about 60% of the people who reside within Korea use commercial condominium. If so, it seems to be improper that the company which constructs and supplies the commercial condominium controls the business types of stores in the commercial condominium. For, among other things, such a company is interested in the maximization of its own profit. For this reason, this Article argues that the validity of such a business restriction in the parcelling-out contract of commercial condominium should be strictly controlled by applying actively the provisions concerned in the Regulation of Standardized Contracts Act, the Monopoly Regulation and Fair Trade Act, the Civil Act, and the Constitution.