구분소유의 대상이 될 수 있는 구조의 건물에 있어서 원시취득자의 확정

Abstract

This article examines and analyzes the Supreme Court decision 2004Da67691 delivered on November 9, 2006 (“The Supreme Court Decision” hereafter), where the Supreme Court firstly dealt with issues as follows: 1) who is the original owner of the building which can be owned in severalty in case where a company, the defendant, started to construct a building but sold it while it was still in construction, to the successor who sold later the building to the plaintiff; and in this case 2) whether the successor, who completed the building, is deemed to gain the ownership over the entire building or over the only part of the building which can be separately owned. For a structure to constitute a building as a separate real property, the case laws before the Supreme Court Decision had set minimum requirements; setting necessary numbers of pillars set up, installing roof and erecting outer walls. For buildings, partially-constructed and suspended due to the constructor’s circumstances, and subsequently sold and completed by the successor, if at the point of time in which the construction was suspended, the structure and shape of such building can be widely accepted as constituting an independent building, then the person who started to construct the building is deemed as acquiring the original ownership of the building. By the way, for buildings, which may be subject to the partition of ownership, the person having the ownership of the building has the right to decide how the building owned such as partitioned or not. Therefore, in order for a partition of ownership to be established, a distinguished act from that we can infer the actor's intent to partition ownership of the building is required. Since most of courts held that the partition of ownership is formed at the point of time when a partition of ownership on the building register is recorded as a separate building following the completion of the whole building. Until the partition of ownership can be formed by the intent, the building should be treated as a single unit and, in principle, the determination for the acquisition of the original ownership should also be premised on the one building basis This view leads to reasonable conclusions for unregistered building structures that are subject to the partition of ownership or for determining statutory surface rights. The significance of The Supreme Court Decision lies in the fact that it clarifies Supreme Court’s position in the above-mentioned instances. In its dicta, the Supreme Court also seems to place limitations on interpreting some holdings from the Supreme Court cases, where the court recognized part of the building subject to the partitioned ownership can be a separate building, as the building under construction can only be considered as separate structure from the land.