건축 중인 집합건물의 구분소유와 직권보존등기의 문제점

Abstract

Where sectional ownership is established in the case of condominium buildings under construction, each section becomes the object of rights and obligations as an independent property in substantive law, and is subject to the Act on Ownership and Management of Condominium Buildings. Moreover, pursuant to the proviso clause of Article 81(1)2 of the Civil Execution Act, the creditor to the owner of an unregistered sectional building under construction may file an application for the restriction on disposition of sectional ownership via compulsory auction, provisional attachment or provisional disposition by attaching (i) a document attesting that such building is owned by the debtor, (ii) a document attesting the parcel number, structure, and size of such building, or (iii) a document attesting the permit of construction of such building. A registrar that received the application shall perform ex officio the registration of ownership preservation following the court’s appointment of an officer to handle the registration of the restriction on disposition of the unregistered sectional building under construction. In Supreme Court en banc Decision 2010Da71578 Decided January 17, 2013, the Court held that “Even in cases of a condominium building under construction, including framework construction, in which the construction progress is only 22.193%, sectional ownership may be deemed as having been established from the point when (i) a single structural building exists upon the completion of concrete slab works related to pillars, main walls, and ceilings of each floor, (ii) a sectional area of said building is separately divided in terms of structure and purpose of use, and (iii) a physically separated area is divided as a sectioned building.” The en banc Decision, supra, overruled the previous ruling that sectional ownership is established when the construction of the entire building is completed and said building is either recorded in the building ledger or disclosed in the register as a sectioned building. Going forward, this is likely to change the legal relationship concerning ownership of a sectioned building in cases where the original owner transfers the same to a third party and changes the name of the entire building’s owner. Against such backdrop, this paper aims to closely examine case studies and precedents relating to sectional ownership and ex officio registration of ownership preservation of condominium buildings under construction. Thereafter, as seen below, the paper seeks to identify emerging issues in practice and explore solutions. First, as regards a condominium building under construction that obtained a building permit but not a completion approval satisfies the requirements for registration, it shall be subject to a decision on disposal restriction irrespective of the overall construction progress and registration of ownership preservation is deemed feasible via commission of registration. Second, if an owner of a building who constructed the same at one’s own expense and simultaneously obtained sectional ownership right as well as land usage right, thereby establishing identicalness between the sectioned building and the land, the transferee thereof is not entitled to sectional ownership unless that transferee is transferred ownership upon expiration of the existing registration or is registered as the owner in the building ledger after obtaining completion approval. However, in practice, a decision on the disposal restriction of ownership is made by deeming an unregistered transferee, who newly obtained the permit of the unregistered building under construction, as a debtor, and a court-appointed officer handles the registration of the restriction on disposition of the same. The author emphasizes that this constitutes ex officio registration of ownership preservation under the name of a transferee, not a sectional building owner.